Water Resources Development Act of 2016

Floor Speech

Mr. President, today I wish to discuss my very serious concerns about the FBI's selective release of Clinton investigation material and especially how the Senate is handling the unclassified but not yet public information provided by the FBI.

On the Friday before a holiday weekend, the FBI chose to release to the public only two of the dozens of unclassified documents it provided to the Congress.

Director Comey said: ``The American people deserve the details in a case of intense public interest'' and ``unusual transparency is in order.'' He is right. The people have a right to know, but actions speak louder than words. Right now the public has only a very narrow slice of the facts gathered by the FBI.

The FBI has released only its summary of the investigation and the report of the interview with Secretary Clinton. However, its summary is misleading or inaccurate in some key details and leaves out other important facts altogether. There are dozens of unclassified reports describing what other witnesses said, but those reports are still hidden away from the public. They are even being hidden from most congressional staff, including some who have been conducting oversight of the FBI on these issues. Why? Because the FBI improperly bundled these unclassified reports with a very small amount of classified information and told the Senate to treat it all as if it were classified.

This is certainly not the ``unusual transparency'' Director Comey said he would provide. In fact, it is just the opposite: unusual secrecy. Normally, when an agency sends unclassified information to the Office of Senate Security, the office that handles and controls classified information, there is a very simple solution. The executive order and regulations governing classified information require that information be properly marked so that the recipient knows what is and is not classified.

In the past, when the Judiciary Committee, which I chair, needed to separate classified information from unclassified information, the Office of Senate Security very simply looked at the markings on the paper and provided copies of the unclassified information without any restrictions, but that has not been done in this specific case. Why not? Because the FBI has instructed the Senate office that handles classified information not to separate the unclassified information which could then be made public. Think about that. The FBI, part of the executive branch of government, is instructing a Senate office about how to handle unclassified information.

Our Constitution creates a carefully balanced system of separation of powers--executive, judicial, legislative. The executive branch cannot instruct a legislative branch office to keep information from the public unless the legislative branch agrees or there is a legal basis for keeping the information secret.

There are laws governing the handling of classified information, but those laws cannot and should not be used to shield unclassified FBI documents from public scrutiny and vigorous constitutional, congressional oversight. But even setting aside the constitutional concerns, what is happening now is totally inconsistent with the executive branch's own rules and regulations regarding classified information. This is what Executive Order No. 13526 says:

The classification authority shall, whenever practicable, use a classified addendum whenever classified information constitutes a small portion of an otherwise unclassified document or prepare a product to allow for the dissemination at the lowest level of classification or in unclassified form.

That is the quote from Executive Order No. 13526. The binder the FBI delivered containing interview reports is, very largely, unclassified. The vast majority of these reports are unclassified in full and the rest have only a few classified paragraphs in each one.

According to the executive order I just quoted, the FBI--part of the executive branch of government--should have provided a separate set containing primarily classified material that could not be separated from an unclassified portion.

Further, that same executive order states--and I want everybody to get this quote: ``In no case shall information be classified, continued to be maintained as classified, or fail to be declassified in order to: prevent or delay the release of information that does not require protection in the interest of national security.''

That is an executive order that ought to bind the FBI. Unclassified material is, by definition, information that does not require protection in the interest of national security. Yet contrary to this executive order, it is being locked away from the public and even most congressional staff and maintained as if it were classified.

Americans deserve accountability from their government. There will not be any accountability if the Federal Government is not transparent. The American people deserve to know the truth. I want to be clear with the American people about what is going on here. If the FBI wants to provide unclassified information to Congress but also keep it hidden from the public, then it should discuss the issue with the committee and negotiate any restrictions beforehand. It should not be allowed to unilaterally impose its will on its oversight committee by delivering documents with all kinds of restrictions that prevent the committee from using those documents. The selective releases of some of the documents deprives Congress and the public of the full context. It is not fair to the public, to the Congress, or to Secretary Clinton. That is why, using common sense, even Secretary Clinton has called for information to be released in full. I agree with her 100 percent.

The FBI says it sent these documents to the Hill in keeping with our oversight responsibilities. Well, oversight and investigation mean more than just receiving whatever information the FBI provides. Independent oversight means double-checking the facts, it means contacting witnesses, and it means asking followup questions. We can't use these documents to help us perform these three steps if they are locked away in the basement of this building. In order to do its job, the committee will have to refer to these documents in the course of speaking to other witnesses and writing oversight letters. This is principles of investigation 101--very elementary.

The FBI is still trying to have it both ways. At the same time the FBI talks about ``unprecedented transparency,'' it is placing unprecedented hurdles in the way of congressional oversight of unclassified law enforcement matters. It turns over documents but with strings attached. It unilaterally instructed the Senate to keep them secret, even though they are unclassified. They want to keep the information locked up. If we honor that instruction, we cannot do our constitutional duty of acting as an independent check on the executive branch and, in this case, the FBI.

At least the FBI has publicly released small portions of this unclassified material I am talking about. However, that selective release has contributed to inaccuracies in the public discussion of this issue. That is why I agree with Secretary Clinton that it should all be released as soon as possible.

Here is why: On Tuesday, the Boston Globe article wrote about evidence from the publicly released FBI summary that suggests an engineer for an IT company managing the server may have intentionally deleted emails, even though that engineer knew they were the subject of a congressional investigation subpoena.

That is the article I asked for and received permission to put into the Congressional Record.

The timeline of that deletion the Boston Globe is talking about occurred around the conference call with that engineer, Cheryl Mills, and David Kendall--Hillary Clinton's lawyers. Relying on the publicly available information, some have claimed the engineer deleted the emails on his own volition.

Whether he did so on his own or at the instruction of somebody else is of course a very key question, and there is key information related to that issue that is still being kept secret, even though--it is being kept secret--even though it is unclassified. If I honor the FBI's instructions not to disclose the unclassified information it provided to Congress, I cannot explain why.

Meanwhile, the New York Times has reported that a second computer expert that worked on Secretary Clinton's servers for a contractor was also given immunity by the Department of Justice. The Department of Justice didn't inform Congress about the immunity deal. The Department of Justice is briefing the New York Times anonymously while refusing to answer questions from its oversight committee about the immunity deals.

Why is it the New York Times gets information for investigation, but the Committee of Commerce doesn't get that same information? At the same time, the FBI is putting a stranglehold on unclassified documents that describe what these witnesses said to the FBI. This is the opposite of the transparency which we are told by the FBI is so important because this is a high-profile case.

The other witness granted immunity--Bryan Pagliano--pled the Fifth to Congress. Congress has a right to question these individuals. They have reportedly received some sort of immunity for their cooperation with the FBI. The public ought to know what information they provided in exchange for a get-out-of-jail-free card.

The American people deserve the whole truth. The public's business ought to be public, and if it is not classified, then all the facts should be part of the public discussion.

Inaccuracies are spreading because of the FBI's selective release. For example, the FBI's recently released summary memo may be contradicted by other unclassified interview summaries that are being kept locked away from the public. Unfortunately, the public can't know without disclosure of information, that the FBI has instructed the Senate not to disclose.

I have objected to those restrictions. I have written to the Office of Senate Security twice, noting that the Judiciary Committee did not agree to those restrictions. I have asked the FBI to provide the unclassified material directly to the committee. That letter has not been answered.

These kinds of restrictions and document controls on unclassified information have no legal basis and there is no authority for them. They are unprecedented and out of bounds. They violate the executive order I quoted--the executive order on classified information--and they intrude on Congress's constitutional authority of oversight.

This is not only an issue for the Judiciary Committee, this isn't only an issue in regard to what the FBI investigated or didn't investigate in regard to Secretary Clinton, this is an issue for every Senator--all 100 Members of the Senate--and every Senate committee to give deep consideration to because Senators need to consider the consequences of allowing the executive branch to unilaterally impose restrictions on unclassified information like this and tell a separate branch of government what we can do under the Constitution.

Every Senator should realize, if this is allowed to stand, that other agencies will be able to abuse the system to undermine transparency, and we need transparency in government to have accountability in government. The Senate should not allow its controls on classified material to be manipulated to hide embarrassing material from public scrutiny, even when that material is unclassified.

The FBI ought to do what it should have done from the very beginning: release all the unclassified information to the public.

When Director Comey told me that he was going to bring these binders to the Hill and cooperate with Congress, giving us this information, I raised this very question with him in that telephone conversation.

Now more than ever, the public has a right to know the whole picture and all the facts gathered by the FBI. Let the people see all of the evidence, and let the people judge for themselves. That would be true transparency.

As a constitutionally elected official, I have an obligation to my constituents to represent them, be honest with them, assist them to the best of my abilities, and to make sure that what is the public's business actually is public. I cannot in good conscience do that when the FBI attempts to assert a vise grip on unclassified information that would be helpful in answering the calls and letters from my constituents. How can I look Americans in the eye and tell them that I have answers but can't share those answers because the FBI says so, even though the answers come from unclassified information?

So to my fellow Americans but most importantly to my colleagues here in the Senate, in times like these, I cannot help but think about a quote from Thomas Jefferson: ``It is the people, to whom all authority belongs.'' It is the Federal Government that works for us; we do not work for the Federal Government. Facts and information gathered by public officials that are relevant to the debate over a public controversy belong to the public. I urge my colleagues to discuss and resolve this issue together.

I will continue to do everything in my power to ensure that the full set of facts is brought to light.

6, 2016] House Republicans Seek Inquiry on Whether Clinton Obstructed Justice Over E-Mails (By Michael S. Schmidt)

Washington.--House Republicans asked the Justice Department on Tuesday to investigate whether Hillary Clinton, her lawyers, and the company that housed her e-mail account obstructed justice when e-mails were deleted from her personal server.

It was the second time in two months that Republicans urged authorities to open an inquiry related to Clinton.

Representative Jason Chaffetz of Utah, chairman of the House Oversight and Government Reform Committee, said the e- mails should not have been deleted because there were orders in place at the time from two congressional committees to preserve messages on the account.

``The department should investigate and determine whether Secretary Clinton or her employees and contractors violated statutes that prohibit destruction of records, obstruction of congressional inquiries, and concealment or coverup of evidence material to a congressional investigation,'' Chaffetz said in a letter to the US attorney's office for the District of Columbia.

Chaffetz also sent a letter to the Denver-based company that housed the account, Platte River Networks, with a request for documents and information related to the account and the deletions.

Since FBI Director James B. Comey announced July 5 that the bureau would recommend that Clinton not be charged in connection with her use of the account, Republicans have pushed the Justice Department to continue investigating her.

Just five days after Comey's announcement, they asked the department to open an inquiry into whether Clinton had lied in October when she testified before the committee investigating the 2012 attacks in Benghazi, Libya.

Clinton dismissed Chaffetz's request when asked about it by reporters on her campaign plane in Tampa, Fla. ``The FBI resolved all of this,'' she said. ``Their report answered all the questions; the findings included debunking the latest conspiracy theories.''

Representative Elijah E. Cummings, the top Democrat on the Oversight and Government Reform Committee, said the request for another investigation was ``just the latest misguided attempt to use taxpayer funds to help the Republican nominee, Donald Trump, and to essentially redo what the FBI has already investigated because Republicans disagree with the outcome for political reasons.''

The Republicans' request has been met with silence from the Justice Department and the FBI, and prosecutors have shown no indication that they are willing to open another investigation. Legal analysts have said making a perjury case against Clinton would be hard.

The FBI released 58 pages of investigative documents Friday related to its inquiry into Clinton's e-mail practices and whether she and her aides mishandled classified information. The documents included a summary of an interview agents conducted with her and a memorandum about the case.

According to the documents, a top aide to Clinton told Platte River Networks in December 2014 to delete an archive of e-mails from her account. But Platte River apparently never followed those instructions.

Roughly three weeks after the existence of the account was revealed in March 2015, a Platte River employee deleted e- mails using a program called BleachBit. By that time, both Chaffetz's committee and the special committee investigating the Benghazi attacks had called for the e-mails to be preserved, according to Chaffetz.

``This timeline of events raises questions as to whether the PRN engineer violated federal statutes that prohibit destruction of evidence and obstruction of a congressional investigation, among others, when the engineer erased Secretary Clinton's e-mail contrary to congressional preservation orders and a subpoena,'' Chaffetz said in the letter to Platte River.

Chaffetz said a series of events in the days leading up to the deletions, including a conference call with Clinton's lawyers and the creation of a work ticket, ``raises questions about whether Secretary Clinton, acting through her attorneys, instructed PRN to destroy records relevant to the then-ongoing congressional investigations.''

Democrats said Chaffetz's facts were wrong. The FBI's memo shows that the Platte River employee who deleted the documents ``did so on his own volition and before the conference call with Clinton's attorneys,'' said Jennifer Werner, a Cummings spokeswoman.

The FBI said it was later able to find some of the e-mails, but it did not say how many had been deleted or whether they were included in the 60,000 e-mails that Clinton said she had sent and received as secretary of state from 2009 to 2013. ____ [From The New York Times, Sept. 8, 2016] Justice Dept. Granted Immunity to Specialist Who Deleted Hillary Clinton's Emails (By Adam Goldman and Michael S. Schmidt)

Washington.--A computer specialist who deleted Hillary Clinton's emails despite orders from Congress to preserve them was given immunity by the Justice Department during its investigation into her personal email account, according to a law enforcement official and others briefed on the investigation.

Republicans have called for the department to investigate the deletions, but the immunity deal with the specialist, Paul Combetta, makes it unlikely that the request will go far. Representative Jason Chaffetz of Utah, the top Republican on the House oversight committee, asked the Justice Department on Tuesday to investigate whether Mrs. Clinton, her lawyers or the specialist obstructed justice when the emails were deleted in March 2015.

Mr. Combetta is one of at least two people who were given immunity by the Justice Department as part of the investigation. The other was Bryan Pagliano, a former campaign staff member for Mrs. Clinton's 2008 presidential campaign, who was granted immunity in exchange for answering questions about how he set up a server in Mrs. Clinton's home in Chappaqua, N.Y., around the time she became secretary of state in 2009.

The F.B.I. described the deletions by Mr. Combetta in a summary of its investigation into Mrs. Clinton's account that was released last Friday. The documents blacked out the specialist's name, but the law enforcement official and others familiar with the case identified the employee as Mr. Combetta. They spoke on the condition of anonymity because they did not want to be identified discussing matters that were supposed to remain confidential.

Brian Fallon, a spokesman for Mrs. Clinton's presidential campaign, said that the deletions by the specialist, who worked for a Colorado company called Platte River Networks, had already been ``thoroughly examined by the F.B.I. prior to its decision to close out this case.'' ``As the F.B.I.'s report notes,'' Mr. Fallon said, ``neither Hillary Clinton nor her attorneys had knowledge of the Platte River Network employee's actions. It appears he acted on his own and against guidance given by both Clinton's and Platte River's attorneys to retain all data in compliance with a congressional preservation request.''

A lawyer for Mr. Combetta and a spokesman for the Justice Department declined to comment.

In July, the F.B.I. director, James B. Comey, announced that the bureau would not recommend that Mrs. Clinton and her aides be charged with a crime for their handling of classified information on the account.

Five days later, Mr. Chaffetz--who has led the charge in raising questions about the F.B.I.'s decision--asked prosecutors to investigate whether Mrs. Clinton had lied to Congress about her email account in testimony in October before the special committee investigating the 2012 attacks in Benghazi, Libya. That request has been met with silence from the Justice Department.

The House oversight committee has asked officials from Platte River Networks, Mr. Combetta and others to appear at a hearing before his committee on Tuesday about how the email account was set up and how the messages were deleted.

According to the F.B.I. documents, Mr. Combetta told the bureau in February that he did not recall deleting the emails. But in May, he told a different story.

In the days after Mrs. Clinton's staffers called Platte River Networks in March 2015, Mr. Combetta said realized that he had not followed a December 2014 order from Mrs. Clinton's lawyers to have the emails deleted. Mr. Combetta then used a program called BleachBit to delete the messages, the bureau said.

In Mr. Combetta's first interview with the F.B.I. in February, he said he did not recall seeing the preservation order from the Benghazi committee, which Mrs. Clinton's lawyer, Cheryl D. Mills, had sent to Platte River. But in his May interview, he said that at the time he made the deletions ``he was aware of the existence of the preservation request and the fact that it meant he should not disturb Clinton's email data'' on the Platte River server.

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