WASHINGTON (CN) – President Donald Trump lambasted James Comey on Twitter Friday in response to reports suggesting the former FBI director absolved Hillary Clinton of wrongdoing before the agency concluded its investigation of her use of a private email server.
Sens. Lindsey Graham, R-S.C., and Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, said Thursday that Comey had circulated drafts of a memo rejecting criminal charges for Clinton over her handling of classified material while secretary of state two months before the FBI interviewed her as part of its probe.
"Wow, looks like James Comey exonerated Hillary Clinton long before the investigation was over ... and so much more," Trump tweeted.
"A rigged system!" he added.
Graham and Grassley sent a letter Thursday to FBI director Christopher Wray asking for all drafts of the statement Comey delivered July 5 closing the Clinton email investigation and any communications between FBI officials about the drafts.
But based on the legal framework the FBI was working with, Washington-based national security attorney Mark Zaid said that Comey could have had an early idea of what the outcome would be, prior to conducting key interviews.
"The legal issues didn't really require to have testimony from Clinton to understand the problems of prosecution," he said.
Zaid said the gross negligence provision of the Espionage Act was the most likely applicable to the investigation, and that Comey could have determined there were serious constitutional issues about how to apply criminal intent to a gross negligence statute.
"You don't need to have anything from Clinton to identify that problem," he said. "From a policy perspective it's ludicrous to think that the government is going to go out on a limb to test a completely novel argument on a presidential candidate, given the consequences it could have."
"There was a vast amount of information that was far more relevant to the issue of was classified information illegally or improperly placed onto an unclassified server that didn't require Clinton's testimony," he added.
Comey’s July 5 statement had skewered Clinton, calling her handling of classified information "extremely careless," and suggesting that hackers might have compromised her emails, but ultimately he concluded that there was no criminal case against Clinton because they could not find intent.
It drew heavy criticism at the time for skirting long-standing Justice Department policies to not talk publicly about investigations. It also angered some conservatives who thought Comey had let Clinton skate.
The six-page letter from Graham and Grassley contained partial transcripts they said they received from the Office of Special Counsel, a government watchdog that had investigated whether Comey had violated the Hatch Act, which prohibits government employees from engaging in political activity in their official capacities.
In accordance with its protocol, it dropped the investigation after President Trump fired Comey in May.
One of those transcripts, which the letter suggests might be from an interview with Jim Rybicki, Comey's former chief of staff , said the former director emailed "a couple folks" in spring, perhaps as early as April.
Recalling the contents of the email, the person said: "knowing the direction the investigation is headed, right, what would be the most forward-leaning thing we could do, right, information that we could put out about it."
When President Trump fired Comey in May, he initially pointed to Comey's handling of the Clinton email investigation as the impetus for removing him.
Undermining his initial reason for firing Comey, Trump called Comey "a showboat" and "a grandstander," during an interview with NBC News. He also said the FBI probe of Russian interference in the 2016 election, which includes a look at whether Trump campaign officials coordinated with Russian in that effort, was on his mind when he fired Comey.
After some of the contemporaneous memos Comey wrote after his various conversations with Trump surfaced in the media, Comey told Congress during sworn testimony that the president had pressured him to drop the FBI's investigation of his former national security adviser Michael Flynn.
Trump's Thursday morning tweet was the latest shot across the bow between the two.
According to Grassley and Graham's letter, the FBI had yet to interview 17 key witnesses in their investigation of Clinton's emails before he started drafting his exoneration statement.
Zaid said he understands where the two are coming from in terms of perception.
"Any optics of prejudging is uncomfortable to see, but I don't look at it as much as prejudging as judging the significant substance of evidence they had already compiled, which was likely not to change based on Clinton's expected testimony. And didn't," Zaid said.
Zaid added that he is confident the FBI would have changed course if Clinton had offered different testimony.
"If she had come forward and said 'Oh yes, I knew, I told everybody and I knew it was classified, and I said don't worry about it,' I'm pretty confident the FBI would have changed their decision," Zaid said.
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