Law & the Courts

Did the State Department Float a Quid Pro Quo to the FBI over Hillary’s E-mail Scandal?

Patrick Kennedy on Capitol Hill in 2012 (Reuters photo: Jose Luis Magana)
The investigation reveals plenty of corruption at the State Department and some stupidity at the FBI, but evidence of bribery is lacking.

This is a long column, so let me cut to the chase. Hillary Clinton’s circle, including Patrick Kennedy, the State Department’s under secretary of state for management, absolutely subordinated national security to politics and broke federal law. But in the “quid pro quo” controversy with the FBI, they are not guilty of bribery. Because the term “quid pro quo” was used — by an FBI agent, in an understandable but overwrought description of a half-baked arrangement proposed by another FBI agent, not Kennedy — commentators are focused on the wrong crime.

The right crime is conspiracy to obstruct justice and congressional investigations. The Clinton camp clearly and corruptly pressured government officials to downgrade the intelligence classification of documents in order to bolster Mrs. Clinton’s false claim that she never trafficked in classified materials on her private e-mail system. Further, they fraudulently exploited exemptions in the Freedom of Information Act (FOIA) in order to bury documents that might harm Clinton — including documents on the Benghazi terrorist attack — such that the public would never see them. Their motive was political — i.e., to minimize the damage of Clinton’s felonious mishandling of classified information — but the intentional effect of their corrupt actions was to obstruct both FOIA cases and Congress’s oversight of the State Department.

Kennedy improperly pressured the FBI to declassify and help him conceal a classified Benghazi e-mail. Nevertheless, after studying the pertinent FBI reports from the batch released on Monday, I conclude that he did not offer a bribe to entice the FBI’s cooperation — the alleged quid pro quo in which, for downgrading the document’s classification, the State Department would reward the FBI with workspace in countries where the bureau’s presence was prohibited or extremely limited.

Instead, I surmise that a very foolish FBI agent — who was frustrated by Kennedy’s unresponsiveness about foreign postings for the FBI and who was ignorant of the magnitude of what Kennedy was asking him to do — loosely floated a potential quid pro quo to Kennedy . . . not the other way around. Moreover, this agent immediately alerted Kennedy that he could not help him once he finally realized the document in question (a) related to the Benghazi terrorist attack in which four Americans including the U.S. ambassador had been killed, and (b) had been classified as “SECRET/NOFORN” (i.e., secret information not releasable to foreign nationals) by the bureau’s counterterrorism division.

Now, before we get into the facts, a bit of background that may help us understand what happened here.

Law-enforcement people generally find the State Department infuriating. When I was a prosecutor working on cases with an international dimension, I knew some very fine State Department employees; by and large, though, I would prefer to have a root canal than interact with their department. My perception was a common one: State Department officials often see themselves as foreign countries’ advocates in dealing with the United States, not America’s advocates in dealing with foreign countries.

Consequently, I have sympathy for the agent in the middle of this mess. Because the released interview reports weirdly redact the names of most of the FBI agents germane to this incident, we will call him “the FBI-IOD agent” — because, though now retired, he worked at the bureau’s International Operations Division (IOD) at the relevant time.

Kennedy improperly pressured the FBI to declassify and help him conceal a classified Benghazi e-mail.

The IOD’s mission is to promote the FBI’s presence across the globe. Since the 1990s, the FBI has sought to establish a principle that counterterrorism is primarily a law-enforcement matter, not a military/intelligence issue. The goal is for the bureau to supplant the CIA as the U.S. government’s go-to overseas intelligence agency. To achieve it, the FBI needs cooperation from the State Department. That can be frustrating: The State Department has cozy relations with the CIA, which prefers operating in the shadows. State is not as enthusiastic about high-profile criminal investigations that embarrass foreign governments. While the FBI has pride of place domestically, it thus chafes under State’s supremacy over U.S. activity across the globe.

The FBI’s IOD oversees the bureau’s foreign activities. That means IOD agents must coordinate with the State Department, which can be maddening. And, significantly for what follows, while IOD brass is conversant with classified-information policy, they are not necessarily informed about classified-information issues that arise in particular investigations — that is the bailiwick of units like the counterterrorism division (CTD) that are closest to individual cases.

In connection with the quid pro quo controversy, FBI investigators interviewed the FBI-IOD agent on August 5, 2015. Before we get into the facts, let’s notice two things he said about his relationship with State Department under secretary Patrick Kennedy. First, he says their relationship was “professional”: While they “got along,” they “did not agree on many matters related to the FBI’s role and authority overseas.” Second, Kennedy had an annoying practice of ignoring the FBI-IOD agent’s phone calls. That is why the FBI-IOD agent was so surprised, upon arriving at his desk one day in late May or early June 2015, to find a note that Kennedy had telephoned and wanted a call back.

Let me translate (using italics, as I will do throughout when translating the euphemistic law-enforcement argot of FBI reports into normal-person language): The agent saw Kennedy as a jerk with whom he interacted in a professional manner because that’s what you’re supposed to do even with jerks. Kennedy, nevertheless, was a particular thorn in the IOD agent’s side because the IOD wants to station more FBI agents overseas and allow them to operate with as few restrictions as possible, while Kennedy seems to think that (a) there should be less U.S. law-enforcement presence overseas, and (b) the few agents allowed foreign posting should be tightly restricted by the host country and the State Department.

Besides that, the state of play when the FBI-IOD agent got Kennedy’s message was that the agent had been trying for months to press Kennedy on the matter of assigning more FBI agents overseas, but Kennedy — no doubt because he was unreceptive to this notion — had been ignoring the calls.

Human nature is such that when a jerk who has been ignoring our messages suddenly calls us out of the blue, it must be because he wants something — probably badly, since he would rather do almost anything than talk to us.

This was clearly the case when Kennedy called the FBI-IOD agent.

To understand why, we must meet the other FBI agent central to this story, the agent who eventually uttered the phrase “quid pro quo,” which has stoked the controversy. This agent, whose name similarly has been redacted, was assigned to the FBI’s Records Management Division (RMD), so we will refer to him as “the FBI-RMD agent.”

About two weeks before Kennedy left the message for the FBI-IOD agent, the FBI-RMD agent received an e-mail from someone (identity redacted) at the State Department’s FOIA section. The e-mail enclosed five of former Secretary Clinton’s “private” e-mail communications. State acknowledged that the FBI had “equities” in these e-mails — translation: Mrs. Clinton had been sending or receiving on her non-secure homebrew e-mail system sensitive information derived from the FBI or that, if revealed, could potentially compromise FBI investigations.

Strangely, although the five e-mails were marked “unclassified,” they had been sent to the FBI-RMD agent via the government’s classified e-mail system. Translation: Whoever labeled them “unclassified” either knew or suspected at least some of them were classified. In any event, the State Department’s purpose in sending them to the FBI-RMD agent was to request that the bureau conduct a “classification review” since the documents were scheduled to be disclosed under FOIA — translation: May we release these e-mails (and thus proclaim that they are unclassified documents), or must we make the former secretary of state and the State Department look bad by withholding information because the FBI insists it is classified?

The FBI-RMD agent instantly saw that at least one of the e-mails contained classified information.

The FBI-RMD agent instantly saw that at least one of the e-mails contained classified information. As he later told interviewing agents, it “related to the attacks on the U.S. Consulate in Benghazi.” (Just to clarify, the State Department facility attacked in Benghazi was not a consulate, although referring to it as such is a common error.) To confirm his judgment, he sent Clinton’s e-mail to the CTD (again, that’s the FBI’s Counterterrorism Division) for a classification review. The CTD confirmed that information in the Clinton e-mail was classified as SECRET/NOFORN.

The FBI-RMD agent relayed this conclusion to the State Department’s FOIA unit. To put it mildly, State was very unhappy. Its Office of Legal Counsel called the FBI-RMD agent to protest. (Some of the counter-arguments State’s lawyers made were truly outrageous; I’ll address them in a separate post.) Although State pressed aggressively, the FBI-RMD refused to yield.

Unable to overcome the FBI’s resistance at this low level, State’s lawyers kicked the dispute up the chain-of-command. That is how it ended up in Kennedy’s lap. And that is why Kennedy, no doubt reluctantly, picked up the phone and called the FBI-IOD agent, whose calls Kennedy had been ducking for months.

Why the FBI-IOD agent? Kennedy wanted the document declassified and calculated that his best shot was to reach out to someone with whom he had a “professional” relationship and who needed Kennedy’s help to perform his own duties; someone who might have enough juice to get the FBI-RMD agent reversed; and someone on the verge of retirement who probably knew nothing about the e-mail in question, wouldn’t be all that curious, and thus might not be offended by the request.

So Kennedy made the call. Surprised to get his message, the FBI-IOD agent made his own calculations. He was obviously irritated that Kennedy was finally calling him only because Kennedy needed something, after having long blown off the FBI-IOD agent without even the courtesy of a return call. I’m betting that, before calling back, the FBI-IOD agent decided he would squeeze Kennedy, regardless of what Kennedy wanted, over the accommodation the FBI wanted — more agents working overseas.

Kennedy had correctly assumed that if he played it right, the FBI-IOD agent would not ask about the subject matter of the document in question.

The FBI-IOD agent made the call. Kennedy shrewdly took the schmooze approach, appealing to the FBI-IOD agent’s sense of self-importance. Kennedy said he needed help changing the classification status of FBI information in a document. But he was being snubbed by some agent in the records division — translation: by a plebe who doesn’t do important foreign-relations stuff like us two guys do. Kennedy had correctly assumed that if he played it right, the FBI-IOD agent would not ask about the subject matter of the document in question. Kennedy did not send him a copy of the Clinton e-mail, nor allude to its contents.

But the under secretary made a show of letting the FBI-IOD agent in on the grand scheme: After getting the document declassified, Kennedy planned to turn it into “B9” material. The FBI-IOD agent, who seems to have known even less about FOIA than about classified information, did not know what “B9” meant. (Indeed, it is not clear that the FBI agents who interviewed the FBI-IOD agent knew what “B9” meant — their interview report includes a “note” that says B9 “may be a reference to a FOIA exemption.”)

In fact, “B9” (i.e., section 552(b)(9) of Title 5, U.S. Code) is a FOIA provision that is almost made to order for Clinton operatives: an exception from public disclosure so obscure and untested that it might be invoked to conceal, well, just about anything. As the Justice Department FOIA manual (2004 edition) describes it:

Exemption 9 of the FOIA covers “geological and geophysical information and data, including maps, concerning wells.” This exemption has very rarely been invoked or interpreted,and its boundaries remain substantially undefined to this day. [Footnotes omitted.]

Kennedy thus confided to the FBI-IOD agent that the “B9” designation “would allow him to archive the document in the basement of [the State Department] never to be seen again.”

Declassify and bury — that was the Clinton strategy.

#share#When Kennedy finished explaining his problem, the FBI-IOD agent neglected to ask elementary questions about the contents of the e-mail — you know, the sort of questions one might expect from an agent of the Federal Bureau of Investigation. Instead, the agent plunged into his own agenda, the one to which Kennedy had been turning a deaf ear for months. The FBI-IOD agent’s pitch to Kennedy is the seed of the “quid pro quo” allegations, so let’s quote the FBI interview notes:

Not yet knowing the e-mail’s content, [the FBI-IOD agent] told KENNEDY he would look into the e-mail matter if KENNEDY would provide authority concerning the FBI’s request to increase its personnel in Iraq.

That’s it. Now look, no one believes more than I do that Kennedy is a conniving scoundrel. But this is just not a crooked quid pro quo. The FBI-IOD agent did not promise to accommodate Kennedy on declassifying the Clinton e-mail — only that he would look into the matter. More to the point, the FBI’s own report states that the FBI-IOD agent, not Kennedy, proposed the so-called quid pro quo; and there is no indication that Kennedy reacted to the agent’s proposal at all, much less agreed to it.

So how did this get so blown out of proportion?

No one believes more than I do that Kennedy is a conniving scoundrel. But this is just not a crooked quid pro quo.

Well, the context has a lot to do with it: Kennedy, a State Department official, is doing the Clinton presidential campaign’s bidding. There is a mountain of evidence of wrongdoing, so people are naturally inclined to believe any additional allegation of wrongdoing. But to understand the rest of this story, more attention to human nature is required. Let’s try to see this from the FBI-RMD agent’s perspective.

After speaking with Kennedy, the FBI-IOD agent called the FBI-RMD agent and gave him grief. If I may translate: Look, if we declassify this document, whatever the hell it is, for Kennedy, I think I can get him to give us more slots in foreign countries. That would be huge for the bureau. So why are you being so stubborn over one little e-mail?

Now, put yourself in the FBI-RMD agent’s shoes. He’s already had to go toe-to-toe with the State Department’s FOIA staff and its top lawyers. He’s run his position by the counterterrorism division that is closest to the e-mail issue, so he knows he’s in the right. Now, he’s thinking (again, this is my interpretation): Here comes an ignoramus from my own agency who hasn’t even taken the time to inform himself about what’s in the e-mail he’s pushing me to declassify. Does he even know it’s an e-mail? Does he know Clinton put the bureau’s classified information about a terrorist attack in which Americans were killed in a private e-mail, and State is trying to cover for her? He figures he can push me around because I’m the records nerd while he’s the big foreign-relations strategist. And he’s too dense to see that Kennedy’s playing him like a fiddle.

So FBI-RMD agent lets his OID counterpart have it. My translation: Hey genius, this e-mail is about Benghazi — remember that one? It’s been classified SECRET/NOFORN by the counterterrorism division. You want to ask them whether we should declassify it for Kennedy — because they’ve already told me, “No f*****g way!”

Hearing some version of this, you can bet the FBI-IOD agent felt like an idiot, embarrassed over the failure to ask Kennedy basic questions about the contents of the document. He instantly decided to drop the whole thing. He called State, telling Kennedy to forget it, he was in no position to help.

Alas, that’s not the end of the matter for the FBI-RMD agent, because Kennedy and the Clinton camp are audacious and they don’t take “no” for an answer.

Thus aware that the coast was clear, Kennedy’s State Department immediately leaked a well-spun story about Clinton’s e-mails to their pals at the Associated Press.

The FBI-RMD agent soon got dragged to an interagency meeting at State, where Kennedy further browbeat him, first in front of a room full of government intelligence agents (suggesting that it was up to the FBI-RMD agent whether the Clinton e-mails would be deemed to contain classified information), and then in a private meeting. When the agent, quite admirably, would not budge, Kennedy demanded to appeal the decision to the CTD. At that point, the FBI-RMD agent was forced to sit through a conference call in which Kennedy tried to push Michael Steinbach, the CTD’s assistant director into declassifying the document.

And then . . . more corruption. When Steinbach refused to declassify the document, Kennedy would not just surrender. He asked if the FBI would make any public comment about the e-mail. Of course, Steinbach said the FBI would do no such thing — the bureau is not in the business of public commentary on intelligence matters.

Thus aware that the coast was clear, Kennedy’s State Department immediately leaked a well-spun story about Clinton’s e-mails to their pals at the Associated Press. Then, Mrs. Clinton held a press conference at which she looked the media in the eye and flatly denied ever sending classified information on her homebrew e-mail system.

It has been lost in the shuffle of the last few months that the FBI runneth over with solid, law-and-order patriots who hate corruption with every fiber of their being. That’s why they wanted to be FBI agents. I am betting that “boiling rage” does not do justice to what the FBI-RMD agent was feeling when he finally got hauled in — as if he were the subject of a criminal investigation, no less — for an interview about the unseemly wheeling and dealing over Clinton’s Benghazi e-mail.

So, when questioned, he unloaded with all the pent up anger one would expect from someone who, for simply doing his job, had been pilloried for weeks by the Clinton machine, with the unwitting help of the FBI-IOD agent. In telling the sordid story, he didn’t mince words. His main resentment, understandably, was reserved for both Kennedy and the FBI-IOD agent — his fellow FBI agent who had done State’s corrupt bidding. He was unsparing, expressly labeling their arrangement as “a quid pro quo” and stressing that they had “pressured” him.

Clearly, the FBI-RMD agent is no legal slouch. By invoking these terms, he was echoing the proof elements of a bribery offense — exactly what the judge would instruct the jurors that they needed to find in order to find the defendants guilty.

#related#The agent’s anger is understandable, but his analysis was wrong. While he was clearly a witness to the corruption of Hillary Clinton, Patrick Kennedy & Co., there was no bribery. To prove that offense, the prosecutor needs to show the corrupt offer of a quid pro quo. Here, there appears to be no evidence that Kennedy offered or accepted a quid pro quo at all. As for the FBI-IOD agent, he was acting stupidly, not corruptly: He floated a potential quid pro quo without any grasp of what the FBI’s side of the bargain would entail; he never agreed to accommodate Kennedy — only to “look into” it; and as soon as he was informed that the classified information at issue related to Benghazi, he told Kennedy to forget the whole thing.

There is overwhelming evidence that Clinton, Kennedy, and their confederates corruptly obstructed judicial FOIA proceedings and congressional investigations. But there is no bribery case. The misconduct of Mr. Kennedy and Mrs. Clinton is heinous enough. Exaggerating it only helps them disingenuously claim that they are being falsely accused. Let’s not help them.

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