Comey dodged charge on claim he didn’t recall Clinton Plan pushing Trump-Russia claims in 2016

The grand jury that indicted ex-FBI Director James Comey for lying to Congress rejected one count brought by the Justice Department, allowing the ex-bureau chief to dodge a false statement charge over his claim that he did not recall a CIA referral memo on Hillary Clinton’s 2016 campaign plan to tie Donald Trump to Russia.

Special Counsel John Durham’s 2023  public report revealed that “the Intelligence Community received the Clinton Plan intelligence in late July 2016.” This intelligence related to an alleged plan by the Clinton campaign to attempt to link Trump to Russia and Vladimir Putin in an effort to distract from her private email server scandal. The Durham report showed that Comey was briefed on the Clinton Plan intelligence by then-CIA Director John Brennan in early August 2016 and was also sent a CIA referral memo about the Clinton Plan intelligence in early September 2016.

Nevertheless, Comey told the Senate Judiciary Committee in late September 2020 that he did not recall this bombshell referral memo from the CIA. The Trump DOJ’s efforts to indict Comey over that piece of his testimony failed.

The DOJ’s indictment, approved by a federal grand jury on Thursday, stems from allegations that Comey misled the Senate during his testimony in late September 2020, when he reiterated his May 2017 denial that he had ever authorized a leak of information to the media about the Trump-Russia investigation or Clinton-related investigations. The indictment also alleged that Comey had obstructed Congress by lying to the Senate. 

The indictment specifies two counts: False statements within the jurisdiction of the legislative branch of the United States Government (18 U.S.C. § 1001(a)(2)) and Obstruction of a Congressional proceeding (18 U.S.C. § 1505).

Comey, fired as FBI director in 2017 by President Trump, oversaw the politicized investigation into Hillary Clinton's illicit use of a private email server to send classified information and the baseless Trump-Russia collusion inquiry. He did not immediately respond to a request for comment sent to him through his lawyer, former DOJ veteran Patrick Fitzgerald.

Grand jury approves two counts — but rejects a third

The foreperson for the grand jury told the judge last night that, in addition to approving two charges, “grand jurors did not concur in finding an indictment in this case” related to Comey’s claim before the Senate in September 2020 that he did not remember the CIA referral about the Clinton Plan intelligence.

The indictment alleges that Comey "did willfully and knowingly make a materially false, fictitious, and fraudulent statement in a matter within the jurisdiction of the legislative branch of the Government of the United States, by falsely stating to a U.S. Senator during a Senate Judiciary Committee hearing that he, [Comey] had not 'authorized someone else at the FBI to be an anonymous source in news reports' regarding an FBI investigation concerning PERSON 1." The identity of "Person 1" was not specified, but from context it is likely it is Hillary Clinton.

The second count of the indictment charges that Comey engaged in "obstruction of a Congressional proceeding" because he "did corruptly endeavor to influence, obstruct, and impede the due and proper exercise of the power of inquiry under which an investigation was being had before the Senate Judiciary Committee by making false and misleading statements before that committee."

A court filing on Thursday night also included a “Report of a Grand Jury’s Failure to Concur in an Indictment.” The foreperson of the grand jury in Alexandria, Virginia, had told the court that “12 or more grand jurors did not concur in finding an indictment in this case.” A handwritten note specified that the rejection of an indictment was for “Count 1 Only” — a count related to Comey’s denial about remembering the Clinton Plan intelligence referral.

The allegation that didn't stick

The count rejected by the grand jury alleged violation of the same law upon which the grand jury also approved another count, namely, “false statements within the jurisdiction of the legislative branch of the United States Government.”

That rejected charge read: “On or about September 30, 2020, in the Eastern District of Virginia, the defendant, [Comey], did willfully and knowingly make a materially false, fictitious, and fraudulent statement in a matter within the jurisdiction of the legislative branch of the Government of the United States, by falsely stating to a U.S. Senator during a Senate Judiciary Committee hearing that he, [Comey] did not remember ‘being taught’ of PERSON 1’s [Clinton’s] ‘approval of a plan concerning’ PERSON 2 and the 2016 U.S. Presidential election,” the count put forward by the DOJ and rejected by the grand jury stated. From context, it is clear that "Person 2" is Donald Trump.

The indictments were brought by interim U.S. Attorney for the Eastern District of Virginia Lindsey Halligan. The former personal Donald Trump lawyer and White House aide was sworn in on Monday. She replaced Erik S. Siebert, who resigned last week, allegedly under pressure from the Trump administration to bring charges against Comey.

The indictment for false statements and for obstruction was likely obtained in a jurisdiction outside the nation’s capital because, even though Comey’s testimony was made during a Senate hearing held on Capitol Hill, he appeared remotely, likely from his home across the Potomac River in Virginia.

Comey was briefed by Brennan and sent a referral by the CIA

Then-Special Counsel John Durham said Brennan's handwritten notes reflect that Brennan briefed Comey, then-President Barack Obama, then-Vice President Joe Biden, and others by early August 2016 regarding the "alleged approval by Hillary Clinton on 26 July [2016] of a proposal from one of her [campaign] advisors to vilify Donald Trump by stirring up a scandal claiming interference by the Russian security services."

The Durham report also said that the Clinton Plan intelligence “was also of enough importance for the CIA to send a formal written referral memorandum” to Comey and since-fired Deputy Assistant Director of the FBI's Counterintelligence Division, Peter Strzok, “for their consideration and action.”

Nevertheless, Comey repeatedly told the Senate in September 2020 that “I do not” recall the CIA referral, and that it “doesn’t ring any bells with me” and “doesn’t sound familiar.”

The Durham report said that the CIA’s referral memo stated that the FBI had “made a verbal request for examples of relevant information the fusion cell had obtained.” FBI Supervisory Analyst Brian Auten told Durham’s investigators that on the Friday before Labor Day — September 2, 2016 — CIA personnel had briefed Auten, FBI intelligence section chief Jonathan Moffa, and possibly “FBI OGC [Office of General Counsel] Unit Chief-1” at FBI Headquarters “on the Clinton intelligence plan” and that “Auten advised that at the time he wanted to see an actual investigative referral memo on the information.” The CIA soon sent that info to Comey and Strzok.

The CIA referral memo to Comey and Strzok — completed on September 7, 2016 — said that the “CIA provides the below examples of information the CROSSFIRE HURRICANE fusion cell has gleaned to date” and showed that the CIA believed Clinton's false narrative would suggest Trump and Russian hackers were hampering U.S. elections, and that Clinton's end goal was "distracting the public from her use of a private email server."

Durham found that, rather than seriously investigating this alleged Clinton scheme, the Obama administration's intelligence and law enforcement apparatus — led by Comey’s FBI — nonetheless pushed forward on the baseless Trump-Russia collusion saga.

Declassified records show that intercepts of purported Russian intelligence may have also swayed Comey’s handling of the FBI’s investigation into Clinton using her illicit private email server to send classified information.

Clinton Plan intelligence hidden from key FBI officials

Key FBI officials from whom the Clinton Plan intelligence was hidden later told Durham that they were upset by this concealment and that they should have seen it in 2016. Many FBI personnel involved with Crossfire Hurricane had never seen the Clinton Plan intelligence until Durham’s team showed it to them, and “some expressed surprise and dismay upon learning of it,” the report found.

Durham’s report said that “Supervisory Special Agent-1” — likely former FBI agent Joe Pientka — “became visibly upset and emotional” when Durham’s team showed him the Clinton Plan intelligence in 2020, with the report saying that the agent “left the interview room with his counsel, and subsequently returned to state emphatically that he had never been apprised of the Clinton Plan intelligence and had never seen the aforementioned Referral Memo.”

“Supervisory Special Agent-1 expressed a sense of betrayal that no one had informed him of the intelligence,” the Durham report said. “When the Office cautioned Supervisory Special Agent-1 that we had not verified or corroborated the accuracy of the intelligence and its assertions regarding the Clinton campaign, Supervisory Special Agent-1 responded firmly that regardless of whether its contents were true, he should have been informed of it.”

Then-FBI General Counsel James Baker also later told Durham “that he had neither seen nor heard of the Clinton Plan intelligence or the resulting Referral Memo prior to his interview,” according to Durham's report. Baker said that “had he known of it during the Crossfire Hurricane investigation, he would have viewed in a different and much more skeptical light” both the anti-Trump Steele Dossier and the baseless Alfa Bank claims.

Comey claims not to remember bombshell CIA referral

Then-Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., pressed Comey on his handling of the Clinton Plan intelligence on September 30, 2020 — with Comey contending he did not remember receiving a CIA referral about it in September 2016.

“Do you recall getting an inquiry from […] the intelligence community in September 2016 about a concern that the Clinton campaign was going to create a scandal regarding Trump and Russia?” Graham asked in 2020.

Comey testified, “I do not.”

“You don’t remember getting an investigatory lead from the intelligence community? […] September the 7th, 2016, U.S. intelligence officials forwarded an investigative referral to FBI Director James Comey and Assistant Director of Counterintelligence Peter Strzok regarding U.S. presidential candidate Hillary Clinton's approval of a plan concerning U.S. presidential candidate Donald Trump and Russian hackers hampering U.S. elections as a means of distracting the public from her use of a private email server,” Graham posited. “You don't remember getting that or being taught, that doesn't ring a bell?”

Comey testified, “That doesn't ring any bells with me.”

Graham replied, “Okay. Well, that's a pretty stunning thing, it didn't ring a bell, but it did come to you. Let's just end with this, you get this inquiry from the intelligence committee to look at the Clinton campaign basically trying to create a distraction, accusing Trump of being a Russian agent or a Russian stooge or whatever to distract from her email server problems."

Pressing the question, Graham continued: "And how far-fetched is that, Mr. Comey, when we now know that the Democratic Party through Fusion GPS hired Christopher Steele, a foreign agent who had a very strong bias against Trump who hired a Russian sub-source who the FBI believed to be a Russian spy to compile a dossier that was a bunch of crap to be used against an American citizen working for the Trump campaign?” Graham said. “You already knew that. Seems to me, you'd want to investigate other allegations, but you're telling me that you don't recall this.”

Comey interjected, “I'm sorry, Senator, is there a question?”

Graham replied, “Yes. You don't recall this inquiry I just read about September 2016?”

Comey again denied remembering this, saying, “No, as I said it doesn't [...] It doesn't sound familiar.”

Clinton Plan intel circulated within Obama IC

According to Durham’s 2023 report, the purported scheme by Clinton was allegedly approved on July 26, 2016 — smack-dab in the middle of the 2016 Democratic National Convention nominating Clinton for president. The Durham report also noted that the approval of the Clinton Plan occurred the exact same day that Australian diplomat Alexander Downer — a Clinton supporter — provided the U.S. government a months-old tip about Trump campaign associate George Papadopoulos — with Downer’s tip cited as the predicate to launch Crossfire Hurricane at the end of July 2016.

The Durham declassified annex said that the “FBI was fully alerted to the possibility that at least some of the information it was receiving about the Trump campaign might have its origin either with the Clinton campaign or its supporters, or alternatively, was the product of Russian disinformation.” But the annex stated that “despite this awareness” — that it might be dealing with a Russian falsehood or alternatively with a genuine Clinton campaign dirty trick — “the FBI appears to have dismissed the [intelligence information] as not credible without any investigative steps actually having been taken to either corroborate or disprove the allegations.” 

The declassified appendix added that, after Trump’s win in November 2016, it was only in 2017 that the “CIA prepared a written assessment of the authenticity and veracity of the above-referenced intelligence. The CIA stated that it did not assess that the above [REDACTED] memoranda, or [REDACTED] hacked U.S. communications, to be the product of Russian fabrications.”

The Durham annex also revealed that, besides the July 2016 Clinton Plan intelligence, the Obama administration received information from a source which was contained in two memoranda.

The January 2016 memo detailed the alleged intention by then-President Obama to scuttle the FBI’s investigation into Clinton’s illicit private email server.

The March 2016 memo alleged that “[the Democratic Party’s] opposition is focused on discrediting Trump. [...] [a]mong other things, the Clinton staff, with support from special services, is preparing scandalous revelations of business relations between Trump and the ‘Russian Mafia’.”

Durham said that FBI analysts believed that, at the time, the “special services” in the March 2016 memo could refer “to the FBI and the CIA or more broadly to the intelligence and law enforcement communities” inside the United States. But other analysts speculated that it could refer to “Trump dossier author Christopher Steele.”

Clinton campaign tried to tie Trump to Russia in 2016

Durham’s public report said that an unnamed Clinton campaign advisor — "Foreign Policy Advisor-1" (revealed now to be Clinton campaign advisor Julianne Smith) — stated that “she did not specifically remember proposing a ‘plan’ to Clinton or other campaign leadership to ‘stir up a scandal’ by tying Trump to Putin or Russia … however, that it was possible that she had proposed ideas on these topics to the campaign's leadership, who may have approved those ideas.” Smith “said it was also possible someone proposed an idea of seeking to distract attention from the investigation into Clinton's use of a private email server, but she did not specifically remember any such idea.”

Durham said in his public report that he obtained an email from "Foreign Policy Advisor-1" — dated July 27, 2016 — which seemed to align with the Clinton Plan intelligence. The annex revealed this advisor was Smith. The email was sent in an effort to gain signatures for a draft stating critiquing Trump over Russia.

“We are writing to enlist your support for the attached public statement. Both of us are Hillary Clinton supporters and advisors but hope that this statement could be signed by a bipartisan group[.],” the email from Smith said. “Donald Trump's repeated denigration of the NATO Alliance, his refusal to support our Article 5 obligations to our European allies and his kid glove treatment of Russia and Vladimir Putin are among the most reckless statements made by a Presidential candidate in memory.”

Durham concluded that “Foreign Policy Advisor-1's July 27, 2016, email to her colleagues regarding Trump, Russia and NATO — the day after Clinton purportedly approved a plan to tie Trump to Russia — is consistent with the substance of the purported plan.”

The special counsel also dug up a text exchange between the aforementioned "Foreign Policy Advisor-1" (Smith) and "Foreign Policy Advisor-2" dated July 25, 2016 — the day prior to the alleged approval of the Clinton Plan.

The second foreign policy advisor reportedly asked the first one if an unnamed Obama NSC member “will tell you if there is a formal FBI or other investigation into the hack” of the DNC. The first foreign policy advisor replied that “[she] won't say anything more to me. Sorry. Told me [she] went as far as [she] could.” The first foreign policy advisor suggested that they “can also try OVP [Office of the Vice President]” because Biden’s vice presidential office “might say more.” The second foreign policy advisor said it “would also be good to try [Biden’s office], and anyone in IC [intelligence community].”

The exchange between the two foreign policy advisors then included the recognition that the FBI had put out a statement that day saying it was investigating the alleged DNC hack.

“The FBI is investigating a cyber intrusion involving the DNC and are working to determine the nature and scope of the matter,” the FBI said in a statement that day. “A compromise of this nature is something we take very seriously, and the FBI will continue to investigate and hold accountable those who pose a threat in cyberspace.”

Durham’s report further concluded that “Foreign Policy Advisor-1's text message exchange with Foreign Policy Advisor-2 supports the notion that at least some officials within the campaign were seeking information about the FBI's response to the DNC hack, which would be consistent with, and a means of furthering, the purported plan."

The special counsel's public report also said that “the official who initially received the information [on the Clinton Plan intelligence] immediately recognized its importance, including its relevance to the U.S. presidential election, and acted quickly to make CIA leadership aware of it.” Internal CIA materials show that Brennan “personally received a copy of the [Clinton Plan] intelligence.”

Durham wrote that, when interviewed, "Brennan generally recalled reviewing the materials but stated he did not recall focusing specifically on its assertions regarding the Clinton campaign's purported plan. Brennan recalled instead focusing on Russia's role in hacking the DNC.”

The recently declassified evidence, dubbed the "Clinton Plan intelligence" included purported intercepted communications from a George Soros ally suggesting that Clinton’s 2016 campaign against Trump was plotting an effort to demonize the Republican nominee by connecting him to Putin, and that the Clinton campaign expected the FBI would put more fuel on the fire.

Clinton campaign hinged on efforts to link Trump to Putin

Public records show Clinton herself, in coordination with her campaign general counsel Marc Elias, campaign manager Robby Mook, campaign chairman John Podesta, campaign communications director Jennifer Palmieri, campaign policy adviser Jake Sullivan, and others launched an effort to link Trump to Putin as the 2016 battle for the White House raged. That effort was largely successful, injecting the fake Trump/Putin into legacy media and DNC talking points.

The Clinton campaign and its paid operatives engaged in a lengthy and coordinated effort to tie Trump to Russia during the 2016 election, including: TV appearances, speeches and public pronouncements; an aggressive news and social media strategy; British ex-spy Christopher Steele’s decision to bring his now-discredited dossier to the FBI; and the spreading of debunked claims to the FBI and the public related to the Trump Organization and Russia’s Alfa Bank.

Biden was the stalking horse used to start the "Russia" smear

Then-Vice President Biden was the first major Democrat in summer 2016 to publicly try to link Trump to Putin after U.S. intelligence intercepted a purported plan by Clinton's campaign to vilify Trump by falsely linking him to a Russian plot.

The former spy chief who organized and co-authored the infamous Hunter Biden laptop letter ahead of the 2020 election is the same person who also played a key role in helping Clinton in 2016 smear Trump by tying him to Putin. Mike Morell, the former acting CIA director, inserted into the American political consciousness the idea that Trump was an “agent” of Putin and Russia, a refrain that would be repeated over and over again by the Clinton campaign and a cooperative media in the summer and fall of 2016.

Comey said on Instagram on Thursday after the indictment was announced: "My heart is broken for the Department of Justice, but I have great confidence in the federal judicial system.” The fired FBI chief added: “And I’m innocent. So let’s have a trial. And keep the faith.”

The fired FBI chief is slated to be arraigned on October 9, as the legal battle gets underway.