Trump on Clinton and the FBI: sorting out the facts

Hillary Clinton campaigns after FBI director James Comey said his agency found nothing new in recently discovered emails. (CBS Minnesota)

Two days before the election, Hillary Clinton’s roller-coaster ride with the FBI seemed to roll to a stop in the same place it began.

Right at the end of October, FBI director James Comey had rocked her campaign, telling Congress about thousands of newly discovered State Department-related emails on the laptop of Anthony Weiner, the estranged husband of top Clinton aide Huma Abedin.

Ten days later, the agency announced that it had found nothing to change the conclusions it reached in July about Clinton’s use of a private email server. Back then, Comey called the practice "careless" but not worthy of prosecution.

Republican nominee Donald Trump reacted to the news by telling a crowd in Minnesota that Clinton was "being protected by a rigged system."

Just days before, Trump had been hammering the Clinton campaign over allegations that there was a separate FBI investigation, this one focused on the Clinton Foundation.

Fox News reported that on Nov. 2, 2016, and Trump quickly made it the centerpiece of his closing arguments.

He told a crowd Nov. 3 in Jacksonville, Fla. that "the FBI is investigating how Hillary Clinton put the office of secretary of state up for sale in violation of federal law."

Trump went on to say, "the investigation is described as a ‘high priority.’ It’s far-reaching and has been going on for more than one year. It was reported that an avalanche of information is coming in. The FBI agents say that their investigation is likely to yield an indictment."

Trump also said that "it is believed that no less than five foreign intelligence agencies successfully hacked into Clinton’s illegal insecure server."

We’re not in a position to fact-check Trump’s statements because too many details lie cloaked behind the walls of the FBI.

Everything Trump said comes from Fox News reporting, and everything in that coverage came from anonymous sources. Since Trump spoke, Fox News has stepped back from two key points. For his part, Trump has stopped mentioning this story, although he still says without specifics that Clinton "sold her office to the highest bidder."

No indictment

Right after Fox News host Bret Baier unveiled his report on Nov. 2, 2016, he was interviewed by fellow Fox News host Brit Hume. Baier said that his sources felt the investigation was moving forward.

"Barring some obstruction in some way, they believe they will continue to likely an indictment," Baier said.

But the next day, Baier corrected himself on air. He said, it was inartful "for me to phrase it like I did."  The day after that, Baier walked the indictment claim back even further with an apology.

"That just wasn't inartful, it was a mistake, and for that I'm sorry," Baier told Fox News host Jon Scott on Nov. 4. "No one knows if there would or would not be an indictment no matter how strong investigators feel their evidence is."

By the time Baier spoke, several other news organizations, including NBC News, ABC News, CNN and the New York Times had reported that their sources said no indictment was imminent, and that no focused investigation was underway at all.

The New York Times cited its sources as saying the inquiry is on hold and no "avalanche" of new material is pouring in.

"The investigation remains open but essentially dormant," the Times wrote, "Officials have told agents they can revisit the case after the election."

In that same conversation with Scott, Baier also corrected his claim that FBI agents said five foreign intelligence agencies had hacked into Clinton’s email server.

"I was quoting from one source about his certainty that the server had been hacked by five foreign intelligence agencies," Baier said. "And while others believe that is probable because of the confirmed hacking of email accounts Secretary Clinton communicated with, as of today there are still no digital fingerprints of a breach no matter what the working assumption is within the bureau."

Trump said Clinton faced two open investigations.

According to the Fox News reporting, FBI agents are "actively and aggressively pursuing" a case against the Clinton Foundation and possible favors given by the State Department to foundation donors.

Does that mean there’s an open investigation?

Possibly, according to Duke law professor Sam Buell. But it doesn’t take much to qualify.

An agent can poke into something at any time, Buell told us. It doesn’t mean the higher ups have taken a formal step to launch an investigation.

"‘Open investigation’ in common law enforcement parlance means nothing more than ‘not closed’ or ‘not nonexistent,’" Buell said.

Trump campaign response

Trump campaign manager Kellyanne Conway was asked Nov. 3, 2016, on MSNBC if Trump would correct his claim about a pending indictment.

"Well, the damage is done to Hillary Clinton," Conway said. "No matter how it's being termed, the voters are hearing it for what it is, a culture of corruption."

On CNN Nov. 6, Anderson Cooper pressed Conway on whether the Trump campaign would take down an ad saying Clinton was under a criminal investigation.

"Maybe we’ll remove that section," Conway said. "We’ll think about it."