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AT THIS HOUR WITH BERMAN AND MICHAELA

FBI Director Recommends No Charges in Clinton E-Mail Probe. Aired 11-11:30a ET

Aired July 5, 2016 - 11:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


[11:00:00] CAROL COSTELLO, CNN ANCHOR: Cristina, go!

Thank you for joining me today. I'm Carol Costello.

AT THIS HOUR with Berman and Bolduan starts now.

ANNOUNCER: This is CNN breaking news.

JOHN BERMAN, CNN ANCHOR: Hello everyone. I'm John Berman.

KATE BOLDUAN, CNN ANCHOR: Hi, everyone. I'm Kate Bolduan.

Looking at the podium right there, waiting to hear from FBI Director James Comey any moment now and we'll be completely transparent, we're not exactly sure what we'll be hearing. We don't even know what topic he plans to address.

BERMAN: Keep in mind, this comes three days after an investigator sat down with Hillary Clinton for three and a half hours discussing her use of a private e-mail server while secretary of state, sat down with means asking questions for more than three and a half hours. Attorney General Loretta Lynch, the attorney general says she will accept the recommendations of the FBI should they choose to indict. If the FBI director is talking today, it will have huge implications on the presidential race. We don't know. We're going to find out when you do.

In the meantime, let's bring in CNN political director, David Chalian.

David, it is strange in this type of thing we have no idea what he was going to say.

BOLDUAN: Not previously scheduled.

BERMAN: If he does come out today and talk about this, let's just talk about what it means for presidential race. Hillary Clinton due to appear with President Obama in North Carolina in just a few hours.

DAVID CHALIAN, CNN POLITICAL DIRECTOR: Again, one more time on the caveat, we do not know what FBI Director Comey is coming out to speak about, but you're right. This would be probably the worst timed press conference if indeed the phish director is coming to speak about the Clinton e-mail investigation because of what you said.

BOLDUAN: David, you see him right here, the FBI director taking to the podium right now.

(BEGIN LIVE SPEECH COVERAGE)

JAMES COMEY, DIRECTOR, FBI: Good morning. I'm here to give you an update on the FBI's investigation of Secretary Clinton's use of a personal e-mail system during her time as secretary of state. After a tremendous amount of work over the last year, the FBI is

completing its investigation and referring the matter to the Department of Justice for a prosecutive decision. What I want to do today is three things; I want to tell you what we did, I want to tell you what we found and I want to tell you what we're recommending to the Department of Justice.

This is going to be an unusual statement in at least a couple ways. First, I'm going to include more detail about our process than I ordinarily would because I think the American people deserve those details in a case of intense public interest. And second, I have not coordinated this statement or reviewed it in any way with the Department of Justice or any other part of the government. They do not know what I am about to say.

But I want to start by thanking the FBI employees who did remarkable work in this case. Once you have a better sense of how much we have done, you will understand why I am so grateful and so proud of their work.

So first, what we have done. This investigation began as a referral from the intelligence community inspector general in connection with Secretary Clinton's use of a personal e-mail server during her time as secretary of state. The referral focused on whether classified information was transmitted on that personal system.

Our investigation looked at whether there is evidence that classified information was improperly stored or transmitted on that personal system in violation of a federal statute that makes it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute, making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.

And consistent with our counterintelligence responsibilities, we have also investigated to determine if there is evidence of computer intrusion by nation-states or by hostile actors of any kind.

Now, I have so far used the singular term e-mail server in describing the referral that began our investigation. It turns out to have been more complicated than that. Secretary Clinton used several different servers and administrators of those server during her four years at the State Department and she also used numerous mobile devices to send and to read e-mail on that personal domain.

As new servers and equipment were employed, older servers were taken out of service, stored and decommissioned in various ways. Piecing all of that back together to gain as full an understanding as possible of the ways in which personal e-mail was used for government work has been a painstaking undertaking, requiring thousands of hours of effort.

COMEY: For example, when one of Secretary Clinton's servers was decommissioned in 2013, the e-mail software was removed. That didn't remove the e-mail content, but it was like removing the frame from a huge unfinished jigsaw puzzle and then dumping all the pieces on the floor.

The effect was that millions of e-mail fragments ended up in the server's unused or slack space.

We searched through all of it to understand what was there and what parts of the puzzle we could put back together again. FBI investigators also read all of the approximately 30,000 e-mails that Secretary Clinton provided to the State Department in 2014.

Where an e-mail was assessed as possibly containing classified information, the FBI referred that e-mail to any government agency that might be an owner of that information so that agency could make a determination as to whether the e-mail contained classified information at the time it was sent or received, or whether there was reason to classify it now even if the content had not been classified when it was first sent or received. And that's the process sometimes referred to as up-classifying.

From the group of 30,000 e-mails returned to the State Department in 2014, 110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was top secret at the time they were sent; 36 of those chains contained secret information at the time; and eight contained confidential information at the time. That's the lowest level of classification.

Separate from those, about 2,000 additional e-mails were up- classified to make them confidential. Those e-mails had not been classified at the time that they were sent or received. The FBI also discovered several thousand work-related e-mails that were not among the group of 30,000 e-mails returned by Secretary Clinton to State in 2014.

We found those e-mails in a variety of ways. Some had been deleted over the years and we found traces of them on servers or devices that had been connected to the private e-mail domain. Others we found by reviewing the archived government accounts of people who had been government employees at the same time as Secretary Clinton, including high-ranking officials at other agencies, folks with whom a secretary of state might normally correspond. This helped us recover work-related e-mails that were not among the 30,000 that were produced to State. Still others we recovered from that painstaking review of the millions of e-mail fragments dumped into the slack space of the server that was decommissioned in 2013.

With respect to the thousands of e-mails we found that were not among those produced to the State Department, agencies have concluded that three of those were classified at the time they were sent or received; one at the secret level and two at the confidential level. There were no additional top secret e-mails found. And finally, none of those we found have since been up-classified.

I should add here that we found no evidence that any of the additional work-related e-mails were intentionally deleted in an effort to conceal them in some way. Our assessment is that like many e-mail users, Secretary Clinton periodically deleted e-mails or e- mails were purged from her system when devices were changed.

Because she was not using a government account or even a commercial account like Gmail, there was no archiving at all of her e- mails. So it's not surprising that we discovered e-mails that were not on Secretary Clinton's system in 2014 when she produced those 30,000-some e-mails to State.

It could also be that some of the additional work-related e-mails that we recovered were among those deleted as personal by her lawyers when they reviewed and sorted her e-mails for production in late 2014. The lawyers doing the sorting for Secretary Clinton in 2014 did not individually read the content of all of her e-mails as we did for those available to us. Instead, they relied on header information and they used search terms to try to find all work-related e-mails among the reportedly more than 60,000 that were remaining on her system at the end of 2014.

It's highly likely that their search missed some work-related e- mails and that we later found them, for example in the mailboxes of other officials or in the slack space of a server. It's also likely that there are other work-related e-mails that they did not produced to State and that we did not find elsewhere, and that are now gone because they deleted all e-mails they did not produced to State, and the lawyers then cleaned their devices in such a way as to preclude complete forensic recovery.

COMEY: We have conducted interviews and done technical examination to attempt to understand exactly how that sorting was done by her attorneys. Although we don't have complete visibility because we're not able to fully reconstruct the electronic record of that sorting, we believe our investigation has been sufficient to give us reasonable confidence there was no intentional misconduct in connection with that sorting effort.

And of course, in addition to our technical work, we interviewed many people, from those involved in setting up the personal e-mail system and maintaining the various iterations of Secretary Clinton's server, to staff member with whom she corresponded on e-mail, to those involved in the e-mail production to State and finally Secretary Clinton herself.

Last, we have done extensive work to try to understand what indications there might be of compromise by hostile actors in connection with that personal e-mail server. So that is what we've done.

Now, let me tell you what we found. Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of the classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.

For example, seven e-mail chains concerned matters that were classified at the top secret special access program at the time they were sent and received. Those chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails about those same matters.

There is evidence to support a conclusion that any reasonable person in Secretary Clinton's position or in the position of those with whom she was corresponding about the matters should have known that an unclassified system was no place for that conversation.

In addition to this highly sensitive information, we also found information that was properly classified as secret by the U.S. intelligence community at the time it was discussed on e-mail. That is excluding any later up classified e-mails.

None of these e-mails should have been on any kind of unclassified system. But their presence is especially concerning because all of the e-mails were housed on unclassified personal servers, not even supported by full-time security staff like those found at agencies and departments of the United States government or even with a commercial e-mail service like Gmail.

I think it's also important to say something about the marking of classified information. Only a very small number of the e-mails here containing classified information bore markings that indicated the presence of classified information.

But even if information is not marked classified in an e-mail, participants who know, or should know, that the subject matter is classified are still obligated to protect it. And while not the focus of our investigation, we also developed evidence that the security culture of the State Department, in general and with respect to the use of unclassified systems in particular, was generally lacking in the kind of care for classified information that is found elsewhere in the U.S. government.

With respect to potential computer intrusion by hostile actors, we did not find direct evidence that Secretary Clinton's personal e- mail domain in its various configuration since 2009 was hacked successfully. But given the nature of the system and of the actors potentially involved, we assess we would be unlikely to see such direct evidence.

We do assess that hostile actors gained access to the private commercial e-mail accounts of people with whom Secretary Clinton was in regular contact from her personal account. We also assess that Secretary Clinton's use of a personal domain was both known by a large number of people and readily apparent. She also used her personal e-mail extensively while outside of the United States, including sending and receiving work-related e- mails in the territory of sophisticated adversaries. Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton's personal e-mail account.

So that is what we have found. Finally, with respect to our recommendation to the Department of Justice, in our system, the prosecutors makes the decisions about whether charges are appropriate based on evidence that the FBI helps collect.

Although we don't normally make public our recommendations to the prosecutors, we frequently make recommendations and engage in productive conversations with the prosecutor about what decisions may be appropriate, given the evidence.

In this case, given the importance of the matter, I think unusual transparency is in order. Although there is evidence of potential violation of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.

COMEY: Prosecutors necessarily weigh a number of factors before deciding whether to bring 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 the mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts.

All the cases prosecuted involve some combination of clearly intentional and willful mishandling of classified information or vast quantities of information 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. But we do not see those things here.

To be clear, this is not to suggest that in similar circumstances a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that's not what we're deciding now.

As a result, although the Department of Justice makes final decisions on matters like this, we are expressing to Justice our view that no further charges are appropriate in this case.

I know there will be intense public debate in the wake of this recommendation, as there was throughout the investigation. What I can assure the American people is that this investigation was done honestly, confidently and independently. No outside influence of any kind was brought to bear.

I know there were many opinions expressed by people who were not part of the investigation, including people in government, but none of that mattered to us. Opinions are irrelevant. And they were all uninformed by insight into our investigation, because we did our investigation the right way.

Only facts matter. And the FBI found them here in an entirely apolitical and professional way. I couldn't be prouder to be a part of this organization.

Thank you very much.

(END LIVE SPEECH COVERAGE)

[11:17:20] BERMAN: The FBI director. You've just been looking at the FBI director, James Comey. And extraordinary moment in Washington. No one knew what he was going to say in the headlines.

BOLDUAN: And he said that. He said the Justice Department does not know what I'm about to say.

BERMAN: He said no charges are appropriate in this case when it comes to Hillary Clinton and her use of a private e-mail server while secretary of state. No charges are appropriate. He said no reasonable prosecutor that the good news for Hillary Clinton.

That's the good news for Hillary Clinton.

BOLDUAN: The bad news, though, he said while there's no clear evidence they intended to violate the law, they were extremely careless in the handling of classified information. Any reasonable person, meaning Hillary Clinton herself, in her position should have known that this place was no place for these conversations, meaning the e-mails, the e-mail server was no place to be having many of these conversations. He's talking about classified information being discussed. 110 e-mails and 52 e-mail chains have been determined to contain classified information at the time that these e-mails were transmitted.

BERMAN: And eight considered top secret at the time they were transmitted.

Want to bring in CNN political director, David Chalian.

The headlines, No charges appropriate in this case. There are several subhead lines as well, Hillary Clinton extremely careless in how she used her e-mail. Certainly security or administrative sanctions would be in order if this were someone else or if she was still in her post.

BOLDUAN: Pretty unbelievable moment.

CHALIAN: This is a little bit of everything here for everyone that wants to take something away here. There is no doubt, to go back to that headline, the biggest thing here that Hillary Clinton wanted to do was move beyond this with no criminal charges, and that is what the FBI director is recommending. And if we take Attorney General Loretta Lynch at her word that she'll accept the recommendations of the career investigators and prosecutors that looked into this, one might assume when it gets the final stamp from DOJ, it will end up with what Comey is saying. Huge sigh of relief that there will be no criminal charges.

But Jim Comey, in these comments, basically cut an ad for Hillary Clinton's opponent if they want to use it by talking about extremely careless in her handling of this.

And, by the way, the two things that Hillary Clinton has talked the most about throughout this entire process of the last year is that she never sent or received anything classified at the time. Jim Comey just said that there were some e-mails sent or received that contained markings of classification, then added the extra layer that, even if it didn't contain markings, that Hillary Clinton and others around her in the position of dealing with this information should have known it was classified. That is one comment Hillary Clinton has said again and again and again that Jim Comey, in his investigation, the FBI investigation, disagrees with.

[11:20:23] The other comment that Hillary Clinton has said time and again is that she handed over every work-related e-mail. That is something that Comey said his investigators found not to be the case. Again, he didn't find any intentional reason that her legal team kept e-mails away, but that there were a couple thousand, what they deemed work related e-mails that did not get turned over in 2014.

Again, that's at odds with something that Hillary Clinton has said throughout this entire process.

Those two fact patterns will have old tape of her going back and forth with what James Comey said. But nothing can take away the fact that this is a huge burden lifted off Hillary Clinton's back, the recommendation from the FBI is no criminal charges. Now she can begin to look forward to November without this hanging over her head. But will remain this political problem with her previous words.

BOLDUAN: It's amazing. It's known the FBI was wrapping up their investigation. There really was no suggestion that today was going to be the day that the FBI director was coming out.

Let's talk more about what the FBI director said and what this means going forward. Jeffrey Toobin is on the phone with us now.

Jeff, I know you were listening to this. Your big takeaway?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST (voice-over): It's an enormous relief for Hillary Clinton and her campaign. This was a dagger aimed at the heart of her campaign, and she has avoided being charged, simple as that.

I also think it's worth focusing on what Director Comey said about the nature of these sorts of charges. It is only -- these cases have only been brought when there has been knowing and intentional violation of the rules of classified information. There have only been these cases when documents clearly marked classified have been disclosed, or documents that the discloser knew were classified. Here, the issue of intent is critical. She has said publicly undoubtedly she said in her interview, she never intentionally disclosed classified information. The FBI found nothing to refute that, and that's why she wasn't charged.

(CROSSTALK)

BERMAN: No evidence that Hillary Clinton --

(CROSSTALK)

BERMAN: Jeffrey, to be clear, James Comey said no indication that Hillary Clinton or others intended to violate the law. I didn't mean to interrupt. Go ahead.

TOOBIN: No. That's exactly right. That's the difference between reckless and irresponsible behavior and criminal behavior. Here, clearly this was a terrible system that was set up in an incompetent way. The people involved did not behave appropriately, but that's not why we have criminal charges. Criminal charges exist for knowing and intentional violations of the law. That's not what the FBI found here.

BERMAN: So that's the legal angle on this. The FBI director recommending no charges in this case. But there was also a clear political angle.

I want to bring in David Axelrod.

BOLDUAN: The FBI director himself acknowledged that in his statement.

BERMAN: David Axelrod is with us.

David, CNN's reporting leading up to this had been that charges were not expected there. In a way that's not a surprise. I think it is a surprise if for 14 minutes the FBI Director James Comey laid out this case for just how careless Hillary Clinton and the State Department was, and her staff was in the use of e-mails during her time there and the personal servers, multiple servers and devices that she used. He essentially said they should have known better. They should have been better here. Your takeaways, David?

DAVID AXELROD, CNN SENIOR POLITICAL COMMENTATOR (voice-over): Well, I think this is probably the best result that she could have gotten. There was never going to be in this matter because, in fact, it was reckless and careless and she, herself, acknowledged the fact that it was a mistake. I think Comey had to lay those facts out because he, more than anything I think, wants to assure people that this was a thorough and fair and well-considered investigation, and I think his statement was very assiduous for that reason.

As a political matter, what Hillary Clinton needed was a resolution, and she got it today. There's no doubt that for those who oppose her and for those who want to raise questions there was material that they can use. But the headline is still the headline which is that this matter -- and now the Justice Department has to act on it. I think given the events of the last few days, it's hard to imagine they wouldn't follow Comey's recommendation. This is what she needed. And the fact that she got it now is probably very, very important because it won't be hanging over her at the Democratic National Convention in a few weeks.

[11:25:42] BOLDUAN: David, it's an extraordinary day that Comey came out to make this announcement. We talked about it at the top of the show when we were going into it. This is the day President Obama is hitting the trail for the first time officially with Hillary Clinton with their big campaign event. That is kind of hanging over this as well.

CHALIAN: Well, you guys as trained professionals probably recognize that this is known as stepping on the story, but I don't think that's Comey's concern. Comey I think was eager to, having completed his investigation, to report out on it and probably didn't care much about the political calendar or how it would affect the story. But there's no doubt that when newscasts, yours and others, continue throughout the day and when that event happens, this will be -- this will supersede that as the news of the day.

BERMAN: Wolf Blitzer joins us now.

Wolf, it's going to be a strange flight down on Air Force One with President Obama and Hillary Clinton going down to North Carolina as the phish director, his FBI director just lit in to the State Department while she was serving as secretary of state, discussing how they used or misused her private server there, despite the fact that no charges are coming.

WOLF BLITZER, CNN ANCHOR: Despite the fact no charges, very, very awkward at a minimum. The fact that he would say she was extremely careless in her use of these private e-mail servers, and he pointed out there was more than one server, very sensitive, highly classified information. Even if it had not been marked highly classified, sensitive or deeply classified information, anyone seeing that information should have known it was classified. It should not have appeared there. It was very vulnerable to outside negative elements if you will. He was very blunt in all of this. At the same time, as you've been pointing out, he said our judgment is that no reasonable prosecutor would bring such a case even though that is extremely damning of the way the secretary of state at that time operated for four years using this private server for all her information to communicate with her aides. There were other opportunities out there. She continued to do it. She shouldn't have done it. She acknowledges she shouldn't have done it. She now acknowledged it was a mistake. At the same time he's not going to recommend charges, which is, of course, what she wanted. At the same time, it is very, very damning to put it mildly.

BOLDUAN: Absolutely right.

Wolf, stand by.

Do we still have Jeffrey Toobin on the phone, guys?

TOOBIN: Yes, you do. BOLDUAN: Jeff, I just had a question. It is amazing when you look at

the timeline here. We cannot forget that it was just Saturday the FBI sat down three and a half hour interview with Hillary Clinton and now Monday they have wrapped this whole thing up. That seems pretty fast to me.

TOOBIN: Well, undoubtedly the core of this investigation was seeing the documents, seeing what other people said. I'm sure the FBI who are nothing if not savvy investigators, recognize it was unlikely for Hillary Clinton to implicate herself in a crime. So if she was going to be charged in a crime, it would have come from other evidence that they had assembled over time. You never call in the subject of an investigation until the very end. Frankly, it's unusual for a subject of an investigation to participate in an interview. They usually take the Fifth and don't talk. But in the event that they do talk, you always want to bring that person in. If you're going to prosecute someone, you almost certainly are going to do it with evidence that comes from other people. That's what the FBI spent all its months doing, getting the evidence from other people that either did or did not support criminal charges. According to Director Comey, it did not support criminal charges. But it was always going to be very unlikely that Hillary Clinton, well prepared by her lawyers, was not going to incriminate herself. Her interview was the climax of the investigation but certainly the evidence was not the key turning point.

BERMAN: We have Evan Perez on the phone with us, our Justice Department reporter.