The FBI’s recent moves suggest that its inquiry could have evolved from the preliminary fact-finding stage that the agency launches when it receives a credible referral, according to former FBI and Justice Department officials interviewed by POLITICO.
“This sounds to me like it’s more than a preliminary inquiry; it sounds like a full-blown investigation,” said Tom Fuentes, former assistant director of the FBI. “When you have this amount of resources going into it …. I think it’s at the investigative level.”
The FBI declined to respond to questions about the scope of its ongoing work.
But POLITICO learned that around early October, the FBI requested documents from a company involved in the server arrangement after Clinton left State. It also interviewed a former high-ranking policy official at State about the contents of top Clinton aides’ emails.
The official, who spoke to POLITICO on condition of anonymity, said the questions explored whether anyone at State was concerned about classified information being put at risk by communicating via email. The source did not know of any such concerns.
Confirmation of the interview and document requests is the first public indication that the agency is moving ahead with its inquiry – and possibly expanding it.
The former State official interviewed by the FBI, for example, had little to do with the Clinton server set-up or any approval process allowing her to use personal email for work — suggesting the FBI’s initial inquiry about the actual physical security of Clinton’s home-made server now also includes looking at the content of messages shared by staff.
Former FBI and Justice officials familiar with the investigative procedures on such matters said the agency must determine two main things: whether the use of an outside email system posed any risks to national security secrets and, if so, whether anyone was responsible for exposing classified information.
FBI Director James Comey acknowledged in October that his agency was probing the server matter generally and believed it had the resources to look into the issues, though he didn’t give specifics.
Over the summer, the Department of Justice said it received a referral from the Intelligence Community Inspector General about potentially exposed classified information on Clinton’s home-made email server. The referral, Justice said at the time, was not criminal in nature but focused on the counterintelligence law governing national security secrets.
The matter at the time was considered a “preliminary” inquiry.
Clinton’s campaign and lawyers have said they are cooperating, turning over her server and a thumb drive backup of her messages to the FBI. They’ve also said they’re encouraging everyone who worked on the server issue to do the same. Platte River Networks, the Denver-based company that housed her server since she left State in 2013, for example, has said it’s cooperating; so has Datto, another tech company that provided a cloud backup of Clinton’s messages.
But exactly who they’re talking to at the staff level has been unclear. For example: Cheryl Mills, Clinton’s former chief of staff at State and lawyer who helped determine which of her emails were personal and work related, wouldn’t say in a recent Washington Post interview whether she had been contacted due to confidentiality surrounding the FBI’s work.
The FBI ultimately decides whether to take a preliminary inquiry to a full-fledged investigation — and if it does so, it is under no obligation to say so publicly. The classification level of any compromised information “may be a factor in determining whether an FBI investigation is warranted,” reads an overview of FBI procedures.
In its review of Clinton’s emails, the State Department has classified more than 400 messages so far — materials that would not therefore be allowed on a homemade email system, although Clinton has said that none of them were marked classified at the time she or her staff received or sent them.
POLITICO reported on Friday that some of the original messages that triggered the referral — a couple messages the ICIG said were “top secret,” the most sensitive national security material — were no longer considered that protected.
Sources told POLITICO this week that as of a month ago, the Justice Department had not determined how to proceed with Bryan Pagliano, Clinton’s top IT expert who oversaw her server but took the Fifth and refused to answer questions when subpoenaed by Congress earlier this year.
Republican lawmakers have weighed an immunity agreement for Pagliano, which would bar him from prosecution and allow him to talk about what he knew of the server: who approved it, why and the security surrounding the system.
His lawyer, reached Thursday, would not confirm whether he’s even been contacted by the FBI.
The agency has asked for documents from Tania Neild, the New York-based technology broker for millionaires, who put the Clintons in touch with Platte River Networks.
Neild confirmed the FBI request in an interview with POLITICO, saying the agency asked her to appear with written documents relating to the advice she gave to her client about negotiating with Platte River. Her company, InfoGrate, acts as a middle man between high-worth individuals and companies that oversee their personal technologies, such as emails.
Neild operates under a confidentiality agreement with all her clients. She said the nondisclosure arrangement precluded her from cooperating with the Senate Homeland Security Committee, which is also investigating the server issue and reached out to her for an interview. But the FBI notice, she said, trumped her confidentiality agreement.
Her lawyer would not confirm any contact they may or may not have had with the Department of Justice or the FBI.
“What we did receive were inquiries from [the Senate Homeland Committee] that are looking into various things,” said Ron Safer, of Chicago’s Schiff Hardin. “And whether we have had communications with anybody else, I really can’t say at this point.”
Due to secrecy surrounding any FBI investigation, it is impossible to know exactly where the FBI stands. And since the issue involves the 2016 Democratic front-runner, the work is even more sensitive.
Ron Hosko, former assistant director of the FBI’s Criminal Investigation Division, said Justice is likely worried about issuing formal legal notices “because they know it will get out, and then you’re talking about a grand jury investigation.” But he said it’s “not uncommon” for companies to require subpoenas, court orders or other legal notices to cooperate to save their corporate reputation, which could otherwise be jeopardized for sharing personal information.
“I am sure there is hand-wringing and gnashing of teeth across the street at the Hoover Building because you’re going to have people saying ‘I don’t want to produce X documents. Give me a piece of paper that covers me.’ And that’s where push is going to come to shove,” Hosko said.