Just 11 days before the U.S. presidential election, FBI Director James Comey wrote a letter to Congress letting them know that the agency had found additional emails that “appear to be pertinent” to its investigation of Hillary Clinton’s private email server.
It was extremely unusual for the bureau to be so forthcoming about an investigation, and the move drew harsh criticism from both Democrats and Republicans who accused Comey of deliberately trying to turn the election in Trump’s favor.
Ten days after the election, the FBI responded to a longstanding VICE News Freedom of Information Act lawsuit, revealing that the bureau may very well have been investigating Donald Trump, too.
In September, VICE News and Ryan Shapiro, a doctoral candidate at MIT and research affiliate at the Berkman Klein Center for Internet & Society at Harvard University, filed the FOIA lawsuit against the FBI demanding documents connected to a pair of incendiary comments Trump made on the campaign trail over the summer. In July, he called upon Russia to track down “30,000 emails [from Hillary Clinton’s private email server] that are missing.” And at an August campaign rally in North Carolina, he made a statement that was widely interpreted as calling for the assassination of Clinton.
We sought this information from the FBI after receiving a tip that the bureau, in addition to the Secret Service, was probing the incidents. We asked the FBI to grant us expedited processing because there was an urgent need to inform the public before they went to the polls on November 8.
But the FBI refused to respond to our request before the election, instead dating it Nov. 18; we received it in the mail Nov. 28.
“The nature of your request implicates investigative records the FBI may or may not compile pursuant to its broad criminal and national security investigative missions and functions,” said the bureau’s response, which is embedded at the end of this story. “Accordingly, the FBI cannot confirm or deny the existence of any such records about your subject as the mere acknowledgment of such records existence or nonexistence would in and of itself trigger foreseeable harm to agency interests.”
This is what’s known as a Glomar response, a term that came into use after the CIA denied a reporter’s request in the 1970s for information about a CIA ship, the Glomar Explorer, designed to recover a sunken Russian submarine. The agency refused to either confirm or deny the ship’s existence.
The FBI’s response states that any records the FBI has must be withheld because disclosure would interfere with enforcement proceedings and disclose information vital for effective investigations. This response is highly suspicious.
‘If the FBI is going to break from precedent, it cannot do so for one presidential candidate and not the other.’
For one, it is extremely rare for the FBI to issue a Glomar. I’ve filed thousands of requests with the bureau and I cannot recall ever receiving a Glomar. Typically, when a FOIA requester seeks information from the FBI on anything the bureau might be investigating, the FBI has explicit authority to deny the request, citing a pending investigation. However, because using that exemption would itself confirm to a requester that there’s an ongoing probe, the FBI has the authority under the FOIA to essentially lie and say it doesn’t have any documents — even when it does.
But the bureau did neither of those things. Instead, it said it could not confirm or deny that it has any documents concerning an investigation into Trump and/or his comments about Clinton.
Had the FBI released this letter to us prior to the election, our subsequent story would have noted that Trump may be under investigation over his comments — and that no doubt would have attracted widespread media attention. The FBI may have been aware of this and chosen to delay disclosure until after Election Day.
The fact that Comey revealed to the heads of eight congressional committees that FBI investigators located emails potentially pertinent to its probe of Clinton before Election Day is a potential double standard not lost on Rep. Elijah Cummings, the top Democrat on the powerful House Oversight and Government Reform Committee.
“It is extremely difficult to understand the FBI’s position,” he told VICE News. “On one hand, they are refusing to provide any information whatsoever in response to these FOIA requests relating to Donald Trump, yet at the height of the presidential campaign, the FBI director personally disclosed details about the investigative steps the FBI was taking with respect to Secretary Clinton — even though there was no finding of criminal activity. I have said repeatedly that if the FBI is going to break from longstanding precedent, it cannot do so for only one presidential candidate and not the other. I believe this approach has done great harm to the public’s trust in the FBI.”
A spokesperson for Clinton did not respond to a request for comment.
It’s unlikely the FBI launched a full-blown investigation into Trump’s comments. Instead, an agent likely raised it as an issue and opened a file that probably contains a few sheets of paper. But that itself would be newsworthy.
Nate Jones, the director of the FOIA project at George Washington University’s National Security Archive, told VICE News the FBI’s response to our requests is troubling on a number of other fronts as well.
“It appears clear that the FBI is placing its interest on not performing a FOIA review of the documents — or even stating if they exist — above the very large public interest in this case,” he said. “It’s another important example as to why agencies should not be given the ability to issue blanket ‘non-denial’ denials in response to FOIA requests…. Hopefully, in this case a judge will compel the FBI to do just this.”
Jeffrey Light, the FOIA attorney handling our case, said VICE News will challenge the FBI’s response in court. But before we proceed, we need the Secret Service to respond to an identical FOIA request. The Secret Service had already stated publicly that it was looking into Trump’s comments about “Second Amendment people” and Clinton. But they’re now in an awkward position: It is their job to protect President-elect Trump.