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How The IRS Failed To Curtail Much-Abused Fat-Cat Loophole

Reprinted with permission from ProPublica.

In March 2019, the IRS added a scheme to its annual “Dirty Dozen” list of “the worst of the worst tax scams.” That same scheme was targeted, just weeks earlier, when the U.S. Department of Justice filed a fraud lawsuit against a handful of promoters allegedly responsible for generating more than $2 billion in improper tax write-offs. And the Senate Finance Committee has been investigating that very same racket, recently demanding thousands of pages of documents from six promoters. Lawmakers from both parties have introduced legislation to halt the same practice.

The scheme they’re all trying to kill is what’s called a “syndicated conservation easement,” which the IRS calls “abusive” and says has resulted in bogus deductions for the rich that have cost the U.S. Treasury billions in revenues.

A conservation easement, in its original, legitimate form, is granted when a landowner permanently protects pristine land from development. In that scenario, the public enjoys the benefit of undeveloped land and the taxpayer gets a charitable deduction. By contrast, the syndicated form, created and packaged by profit-seeking middlemen known as “promoters,” involves buying up land, finding an appraiser willing to declare that it has huge development value and thus is worth many times the purchase price, then selling stakes in the deal to wealthy investors who extract tax deductions that are often five or more times what they put in. (ProPublica investigated syndicated easements in the 2017 article “The Billion-Dollar Loophole.”)

But the multifront crackdown seems to be having, at best, a limited effect. There were signs that the pace of syndicated deals has eased, according to an IRS letter to Congress in July 2018 that cited incomplete data; that’s the most recent official statement from the agency, which declined to comment for this article. And some entities doing syndicated projects have seen their business drop or have even left the field. But IRS commissioner Chuck Rettig offered a different picture to the Senate Finance Committee this spring. “Syndicated transactions have absolutely not declined,” he testified. “They’re still there.”

In November, Rettig announced an escalation — including the launch of criminal investigations — in the agency’s attempts to stymie syndicated easements. “We will not stop in our pursuit of everyone involved in the creation, marketing, promotion and wrongful acquisition of artificial, highly inflated deductions based on these aggressive transactions,” he said in a statement at the time. Three IRS divisions are now conducting coordinated examinations of syndication deals after identifying 125 “high-risk cases,” and outside contractors have been hired to assist with the investigative load. More than 80 tax court cases are now pending against partnerships that used the syndicated easement deduction.

The imperviousness of the scam’s promoters and investors has left tax experts flummoxed. “Boy, it isn’t like the old days, when people were fearful of the IRS,” said Steven Miller, who oversaw enforcement and tax-exempt organizations during his 25 years at the IRS and is now national tax director with consulting firm Alliantgroup. “I’m worried people aren’t afraid of the cop on the beat any more.”

Another IRS veteran offered a similar view. “I thought by now they would have put these guys out of business,” said former agency commissioner John Koskinen, who took steps against syndicated easements before he left in late 2017. “Obviously, if you can get four to seven times your investment back in deductions, that’s a good deal. But you really have to have a lot of chutzpah to pull it off.”

Some promoters continue to flaunt their sales pitches. In November, for example, an Alabama promoter (which was not sued by the Justice Department) solicited high net-worth clients with an ad in Barron’s, promising, in capital letters, “TAX DEDUCTIONS AVAILABLE THROUGH CONSERVATION EASEMENTS…100,000 INVESTED YIELDS UP TO 600,000 IN DEDUCTIONS.”

And sizable deals are still being struck, including by an Atlanta firm called EcoVest Capital, a chief target of the Justice Department lawsuit. According to a private placement memorandum dated Oct. 24, which was obtained by ProPublica, EcoVest was planning as many as three new syndicated deals on 1,549 acres in rural Calhoun County, Texas. One, touting a deduction of $4.10 for every $1 invested, was completed by year-end. (The Justice Department suit, which is still in its early stage, asserted that EcoVest has been involved in 51 syndication easement deals since 2009, generating $1.7 billion in federal tax deductions.)

On their face, the risk disclosures to potential investors in a syndicated deal seem daunting. For example, the private placement memo for EcoVest’s Texas offering warned of a “very high likelihood that the Property Entity or the Company will be audited by the IRS.”

But experts cite several reasons for the stubborn survival of this tax-avoidance scheme. The first is that the IRS, which Congress has starved for funding, chiefly wields its clout through individual audits and tax court cases, which invariably take years. And even the dozens of tax court cases the IRS is pursuing target only a fraction of syndicated deals.

More important, the syndicated deals are structured in a way that insulate the wealthy individual investors, leaving the promoters and outside lawyers to do battle with the IRS. Their fight is fueled with “audit reserves” of as much as $1 million that are set aside as part of every syndication partnership. Some deals even offer “audit insurance” from Lloyds of London to offset disallowed write-offs.

“The way the structure works is pretty buttoned up,” Miller said. “The investor sits there and doesn’t see immediate pain. You’re not going to be bothered by the IRS at the front end. Some of them say: ‘Well, let me do the math. What’s the likelihood of that 40% penalty?’ That’s the calculation people are making.”

Miller believes the deterrent effect will kick in only if more cases personally target individual promoters and deal consultants with tough penalties and professional sanctions. “Ultimately,” he said, “they need to crush a few appraisers like a grape.”

The “linchpin” of the syndicated easements, Miller said, is the inflated appraisal. “How do I buy something today for a dollar and magically everything I buy is truly worth $10? That belies rational thought. You just scratch your head.”

Here’s how the appraisal worked in one syndicated deal described in the Justice Department complaint. In 2015, an EcoVest entity acquired 28 acres in North Myrtle Beach, South Carolina, for $1.1 million. The firm raised about $9 million from investors who bought the property, then made an easement donation based on a claimed value for what the land would be worth if developed as a multifamily resort. That projection, made by an appraiser hired by the promoters, produced a tax deduction of about $39.7 million. The tax writeoff for investors: $4.12 for every $1 invested.

In a written response to ProPublica’s questions, an EcoVest spokesperson called the government’s charges “baseless” and insisted that “none of the appraisals associated with EcoVest sponsored investments are abusive or fraudulent.”

One appraiser regularly retained by EcoVest and other syndicators also looms large in the Justice Department suit: Claud Clark III, based in Magnolia Springs, Alabama. The complaint notes his involvement in at least 58 syndicated easement deals and alleges that Clark, 66, “continually and repeatedly” generated “grossly overvalued appraisals.”

In January 2019, the Alabama state real estate appraiser board brought a formal complaint against Clark, after a detailed review of one of his easement appraisals found an inflated valuation riddled with errors and omissions. Threatened with loss of his Alabama license, Clark voluntarily surrendered it in April instead. He faces a second complaint filed with state regulators in Louisiana, regarding a 2018 appraisal he did for syndicators in Jefferson Davis Parish.

EcoVest has continued to use Clark. Its October private placement memorandum, which raised $19.3 million from investors, did not disclose that he had surrendered his appraisal license in his home state. (A spokesperson for EcoVest said Clark’s relinquishment of his Alabama license wasn’t disclosed “because, under securities laws, it was not material to whether Mr. Clark was authorized to issue an appraisal in Texas — a state with different appraisal rules, regulations, and practices.”)

Clark did not respond to requests for comment. On Christmas Eve, however, his attorneys filed a 130-page response and counterclaim to the Justice Department complaint, denying any inflated appraisals and accusing government officials, including the IRS commissioner, Rettig, of making “unlawful disclosures” of appraisal information from his tax returns in public statements about the litigation.

Promoters of syndicated conservation easements have long been at war with the supporters of traditional easements, who worry that abusive deals will prompt Congress to eliminate the tax break altogether. The traditional conservation community, embodied by the Land Trust Alliance, the Washington, D.C., association of nonprofit land trusts, began pressing the IRS to crack down nearly a decade ago. (Land trusts are a key part of the process: The rules for conservation easements require that any property donated to seek an easement deduction must be accepted and maintained by a land trust or government entity.) The Land Trust Alliance later refused to accredit any trust accepting syndicated deals.

The IRS’ attempt to crack down on syndicated easements dates back to December 2016, when the agency took the rare step of designating profit-making syndicated easements as abusive “listed” transactions. The IRS demanded special paperwork identifying everyone involved in such deals — from promoters and tax advisers to appraisers and investors — and warned that continued involvement would brand them for investigations and audits.

The agency next took its campaign to tax court, after refusing to back down on dozens of audits rejecting the fat write-offs and demanding back taxes, interest and penalties of up to 40%.

But with millions at stake, promoters have fought back fiercely. In 2016, they formed a Washington, D.C.-based advocacy group, called Partnership for Conservation, which has spent more than $3 million to date on lobbyists. EcoVest has spent another $2.5 million.

The Partnership for Conservation defends the legitimacy of syndicated deals, arguing that the profit motive produces “tremendous opportunities” for conservation, according to Robert Ramsay, executive director of the organization. He said that the IRS should limit enforcement to cases of appraisal and valuation abuse, which he calls rare. “You have to stop with the premise that all of these are egregious and over the top,” Ramsay said. “I don’t think that’s the case.”

Among the syndicators’ most fervent supporters is Robert Keller, a conservation biologist who runs the Atlantic Coast Conservancy, a land trust in Jasper, Georgia, and has accepted more syndicated easements than anyone. Keller acknowledged in an interview that his business has slowed, declining from 56 easements in 2017 to 22 in 2019. His land trust is itself now also under IRS audit for 2014 through 2016. (One of the reasons for the decline in volume for Keller: Atlanta-based Ornstein-Schuler, among the most prolific syndicated-easement promoters, announced last January that it was abandoning the business, citing “recent developments and the uncertainty related to the conservation and gifting of property.”)

Keller’s land trust displays the slogan “Saving the world — One small piece at a time.” He is unapologetic about accepting syndicated easements. “For me, as a conservation biologist, this allows me to put away vast pieces of property,” Keller said. “I want to save the world.”

Keller asserts the campaign against syndicated easements resulted from an unholy political deal between the Land Trust Alliance and IRS. In September, he filed a Freedom of Information Act lawsuit against the IRS to force the release of correspondence between the two groups that he claims will provide smoking-gun evidence.

Land Trust Alliance CEO Andrew Bowman called the notion of such a conspiracy “absurd.” As he put it: “Taxpayers are being bilked. The intent of Congress is being violated. And the future viability of land conservation is endangered. The egregious profiteering the IRS has tracked … must end.”

At the urging of Bowman’s group, bipartisan congressional sponsors have, for the past three years, proposed legislation that would kill most syndications by limiting their profitability. It would bar deductions that exceed two and a half times the investment for any easement partnership that owned the land for less than three years.

In July, Congress’ Joint Committee on Taxation projected that passage of the latest incarnation, the “Charitable Conservation Easement Program Integrity Act of 2019,” would, if enacted, produce $7.1 billion in additional tax revenue through 2021. The bill has yet to get out of committee.

Paul Kiel contributed to this report.

Correction: This story originally misstated the founding year for the Partnership for Conservation. It was 2016, not 2017.

Prosecutors Focused On Trump CFO Weisselberg

Reprinted with permission from ProPublica.

Manhattan District Attorney Cyrus Vance Jr.’s criminal investigation of the Trump Organization is scrutinizing the actions of one of the president’s oldest and most trusted deputies, ProPublica has learned.

The focus on Trump Organization CFO Allen Weisselberg, a 72-year-old accountant now running the business with Trump’s two adult sons, stems from his involvement in arranging a payment to porn actress Stormy Daniels in exchange for her silence about an alleged sexual encounter with Trump (which Trump has denied).

Federal prosecutors from the Southern District of New York, or SDNY, contended that the Trump Organization had improperly booked reimbursements for the hush-money scheme as “legal expenses,” with the aid of sham invoices. They granted legal immunity to Weisselberg and later closed their 18-month investigation with the guilty plea of one Trump associate, Michael Cohen. But Weisselberg’s immunity deal applied only to federal proceedings.

Now Vance’s state grand jury is examining whether Weisselberg, among others — and even the Trump Organization — should face state criminal charges for falsification of business records, according to a source familiar with the investigation. Neither Weisselberg nor the Trump Organization responded to requests for comment. Vance, through a spokesman, declined to comment.

A handful of lawyers and investigators from Vance’s office, led by Chris Conroy, chief of the DA’s major economic crimes bureau, traveled to the federal minimum-security prison camp in Otisville, New York, on Oct. 30 to meet for the third time with Cohen, who is serving a three-year prison sentence, according to two sources knowledgeable about the matter. Much of the discussion involved Weisselberg.

Neither the president nor his sons appear to be in Vance’s crosshairs at this point in the investigation, which is at an early stage, according to the source familiar with the investigation. But, the source added, New York prosecutors are far from ruling that out.

The investigation is playing out amid an unusually public conflict between the offices of the Manhattan DA and the U.S. attorney, which are headquartered across the street from each other in Lower Manhattan.

Vance originally launched his investigation back in August 2018, after Cohen’s guilty plea and public testimony revealed the Trump Organization’s deceits.

But when one of Vance’s staffers placed a courtesy call to inform the federal prosecutors of their investigation, according to the source familiar with the investigation, the DA was asked to “stand down.” The reason: The U.S. attorney’s office said it was still investigating the Trump Organization, pursuing additional targets. (A spokesperson for the SDNY declined to comment.) Vance agreed to put his investigation on hold.

As late as May 2019, federal prosecutors told U.S. District Judge William Pauley that their investigation was “ongoing.” For months before that, the SDNY seemed to be gathering evidence for possible charges against people beyond Cohen. At least, that was the public impression created by the prosecutors’ decision to grant immunity and non-prosecution agreements, respectively, to Weisselberg and executives with the National Enquirer, who collaborated with Cohen on a second hush-money payoff, to former Playboy centerfold Karen McDougal. (Trump denied that relationship, too.)

Vance’s probe remained on hold for nearly a year — until July 18, 2019 — when Pauley revealed that federal prosecutors had informed him their investigation was “effectively concluded.”

With that, the Manhattan DA quickly restarted his state investigation. On Aug. 1, a grand jury subpoenaed an array of records from the Trump Organization involving the hush-money payments and Cohen’s work for Trump. The DA contended that the subpoena applied to Trump’s tax records.

Over the next few weeks, Trump’s business turned over 3,376 pages of documents, court filings show. Those documents did not include tax records. A subsequent filing by the DA asserted that “approximately two-thirds” of those 3,376 pages consisted of “non-substantive Google alerts.”

On Aug. 29, the DA subpoenaed Mazars USA, Trump’s accounting firm, demanding Trump’s personal and business tax returns dating back to 2011, as well as work papers and financial statements. Lawyers for the president then filed suit in federal court on Sept. 19 to quash the Mazars subpoena.

The U.S. Department of Justice intervened in the case, backing Trump’s request to keep the dispute in federal, rather than state, court. The DOJ supported further delays to consider Trump’s claims in federal court, but it did not then take a position on the merits of the underlying dispute.

The DOJ pleadings were co-signed by the SDNY. Privately, SDNY representatives, wary of appearing to do Trump’s bidding, insisted that their office’s role was limited, likening it to merely serving as local counsel.

That’s when the tensions between the federal and state prosecutors surfaced — but they were largely ignored by the press, which focused on the bigger issue of whether the president can quash the subpoena for his taxes. Vance’s office bristled at the DOJ’s unusual decision to jump in with support from the SDNY.

The Manhattan DA’s office argued in court that the delay caused by the SDNY’s request to stand down has harmed its ability to bring a case. The clock is now running out on the DA’s ability to bring misdemeanor false-records charges. Because the last disguised reimbursement payment, signed by Trump, is dated Dec. 5, 2017, the two-year statute of limitations expires next month. (Convicting a person of a misdemeanor fake-records charge requires proving an “intent to defraud,” according to lawyers. The charge can also be prosecuted as a felony, which has a five-year statute of limitations. Proving the felony requires not only establishing an intent to defraud, but also that the intention was aimed at committing or concealing a second crime, such as claiming improper deductions on a tax return or making a false representation on a financial statement.)

At a hearing in federal court on Sept. 25, Carey Dunne, general counsel for the DA’s office, complained that the feds were aiding Trump’s efforts to run out the clock: “It is what they want in the end. … What that means, if they get further delay, basically they win and we lose, without an adjudication by this court, and that’s not what should happen today.”

Dunne made a similar argument in an Oct. 3 letter to the federal judge overseeing the subpoena battle. As he put it, “delaying enforcement of the subpoena will likely result in the expiration of the statutes of limitation that would apply to some of the transactions at issue in the grand jury investigation.” Dunne called the DOJ’s involvement “all the more audacious in view of the fact that, until quite recently and for more than a year, DOJ prosecutors in this very district conducted a highly publicized grand jury investigation into some of the very same transactions and actors that have been reported to be at issue in this matter.”

Federal district and appeals courts quickly rejected Trump’s claim of blanket immunity from criminal investigation, and he has now petitioned the Supreme Court to hear his case. If the court refuses to hear it, Vance’s investigators could be combing through Trump’s tax records by year-end. A decision to hear the case would push any resolution well into 2020.

The scrutiny of Weisselberg stems from his reported role in hiding the hush-money payments. Cohen gave congressional committees a detailed account of how, at Trump’s direction, he strategized with Weisselberg in October 2016 about how to fund the $130,000 payment to Daniels.

The adult-film actress was then threatening to go public. It was a fraught moment, immediately after the broadcast of the “Access Hollywood” tape, in which Trump talked about grabbing women by their genitals, and just one month before Election Day.

Cohen testified that he and Weisselberg argued over which one of them should come up with the hush money. Eventually, Cohen tapped a home-equity line of credit, a funding source that would be hidden from his wife. According to government filings, it was decided the Trump Organization would reimburse Cohen through monthly payments disguised as a legal retainer, and Cohen submitted sham invoices to paper over the deceit. Along with Donald Trump Jr., Weisselberg signed two of the monthly checks for Cohen. Trump signed six others.

Prosecutors said Cohen carried out his actions “in coordination with and at the direction” of Trump, who they identified in filings as “Individual-1.” Those filings identified two other Trump Organization figures — “Executive-1” and “Executive-2” — as processing Cohen’s phony monthly invoices. Those two executives were the Trump Organization’s controller, Jeff McConney, a 32-year veteran of the company, and Weisselberg, according to a source familiar with the matter. (Previous published reports incorrectly identified Weisselberg as “Executive-1” and McConney as “Executive-2.”) McConney did not respond to an emailed request for comment.

One of Cohen’s lawyers later released a surreptitious recording Cohen made of a September 2016 conversation with Trump discussing the arrangement to pay McDougal. In it, Cohen is heard telling Trump: “I’ve spoken to Allen Weisselberg about how to set the whole thing up.”

Cohen was the only identified participant in the scheme to be charged in the federal investigation. (In addition to federal tax and false-statement crimes, he pleaded guilty to illegal campaign contributions for the payoffs, which benefited Trump’s campaign by silencing the women through Election Day.) A DOJ policy memo barring federal prosecution of a sitting president protected Trump.

That shield, however, doesn’t apply in state court, making the president, Trump Organization executives including Weisselberg (whose federal immunity, as noted, also doesn’t apply in state proceedings) and even the Trump Organization itself potential targets.

A company can be charged if a high-ranking officer with authority to “bind” the business engages in illegal conduct, according to Adam Kaufmann, a white-collar attorney and former investigations chief for the Manhattan DA’s office.

Weisselberg’s employment dates back to the era of Fred Trump, the president’s father, and he has a reputation as the ultimate company man. In deposition excerpts filed by the New York attorney general in her case against the Trump Foundation — which resulted in its shutdown, admissions of wrongdoing and an order to pay $2 million to charity — Weisselberg, who served as the foundation’s treasurer, was questioned about Trump’s use of the charity for a political event before the Iowa presidential primary.

He described receiving a phone call one morning in January 2016, as he was preparing for a dental appointment, asking him to fly to Iowa that night to write “some checks.” What did he think about this request “to bring the checkbook,” an assistant attorney general asked. “It doesn’t matter what I thought,” Weisselberg replied. “He’s my boss. I went.”

As for Cohen, he has been attempting to insert himself into the investigation as a witness. His lawyers have been laboring to reduce his three-year term, offering the carrot of Cohen’s cooperation regarding what they claim is a litany of Trump Organization crimes. Recently, word was conspicuously leaked that he had stories to tell about his own contact with Lev Parnas and Igor Fruman, the Rudy Giuliani associates indicted for using foreign funds to influence U.S. elections.

Federal prosecutors, who last year declined to urge a major reduction in the range for Cohen’s projected prison term, citing “a pattern of deception that permeated his entire life,” among other things, have rebuffed repeated entreaties from Cohen’s lawyers to reengage. Cohen’s lawyers had hoped such cooperation would prompt federal prosecutors to request a special post-sentence “Rule 35” reduction in his prison term before the one-year window for such a request expired.

The Manhattan DA’s team, with different targets and no power to urge a sentence reduction, has been more receptive. At the team’s last meeting with Cohen and his lawyers, they discussed the possibility of obtaining a trove of evidence that federal agents seized in the raids on Cohen’s apartment, office and hotel suite in April 2018. The feds recently returned a flash drive containing the evidence — including files, contracts, notes and tape recordings — to Cohen’s legal team.

Cohen’s legal team, which includes Lanny Davis, has also urged congressional leaders to intervene on his behalf. Cohen’s team is promoting a new, albeit improbable, image for the man who once was proud to call himself Trump’s fixer: “the John Dean of his generation.”

Revelations About FBI’s Handling Of Clinton Emails Show No Coverup Or Misconduct

Media reports this week have focused fresh attention on how the Federal Bureau of Investigation managed the dramatic discovery — five weeks before the 2016 presidential election — of what seemed to be a fresh trove of Hillary Clinton emails and the delay in investigating them that ensued. The articles are fueling Republican charges of an FBI cabal, intent on protecting the Democratic nominee.

Yet the latter view is contradicted by the evidence gathered in a multi-month ProPublica investigation last year that examined the FBI’s Clinton investigation. That article found that, indeed, crucial weeks dribbled away before the FBI took action — but there was no sign that any particular individual was intentionally stalling or that the delay was politically motivated.

This week’s stories, by The Washington Post and The Wall Street Journal, have zeroed in on the FBI’s then deputy director, Andrew McCabe, who reportedly took three weeks or a month (depending on which account you believe) to order an examination of the new emails after an agent stumbled across them during a sex crimes investigation of Anthony Weiner, then the estranged husband of Clinton deputy Huma Abedin. Both stories report that the Justice Department inspector general — in the midst of a broad investigation of how the FBI and Justice Department managed the probe — is examining McCabe’s role.

The Post, quoting unidentified sources, reported that the inspector general is “focused” on why McCabe “appeared not to act for about three weeks on a request to examine a batch of Hillary Clinton-related emails…” The Journal notes that “Republicans and critics of the FBI have suggested the bureau may have sat on the emails to avoid hurting Mrs. Clinton” and are “especially suspicious of Mr. McCabe.”

McCabe, who did not provide comment for either article, was already under fire before they appeared. He recently resigned after becoming the target of President Donald Trump and congressional Republicans. One key complaint: McCabe’s wife ran unsuccessfully for a Virginia state Senate seat as a Democrat, and received a reported $700,000 from entities linked to Virginia governor and longtime Clinton ally Terry McAuliffe. McCabe, who was head of the FBI’s Washington field office at the time, played no role in the Clinton probe before his wife’s defeat in November 2015, then assumed an oversight role in the case after being named deputy FBI director in February 2016.

Yet the response to the new articles in some circles — to view the delay as proof of an anti-Trump conspiracy at the FBI — misunderstands what has long been known. The FBI’s snail’s-pace handling of the Weiner-laptop emails isn’t news.

ProPublica’s detailed examination of how then FBI Director James Comey handled — and mishandled — the entire Clinton investigation noted that the bureau’s top hierarchy, including Comey, was alerted to the discovery of the Clinton emails within days. Here’s how we described what happened:

On Sept. 26, after federal prosecutors in New York obtained a search warrant, the FBI collected Weiner’s iPhone, iPad and laptop. Agents began examining the computer — a silver, 15.6-inch 2015 Dell Inspiron 7000 — for any pictures, videos or other evidence involving Weiner’s teenage sexting partner. An agent sorting through the contents of the hard drive came across a jolting find: a State Department memo and some emails between Abedin and Hillary Clinton. The documents were not covered by the sex-crimes warrant, which meant that the FBI had no legal right to examine them.

The presidential election was five weeks away.

The agent went to the office of the U.S. Attorney for the Southern District of New York for guidance. Prosecutors there wanted no part of the email case, which had been staffed by a special team of agents, FBI analysts, and Justice Department lawyers working out of FBI headquarters, in Washington. The New York prosecutors told the agent to seek advice from that team. They said nothing to their own bosses at Justice Department headquarters.

By Oct. 3, senior officials at the FBI — including Comey — had been alerted that the Weiner laptop contained an unknown number of Clinton emails.

This week’s stories raise the prospect of a deliberate McCabe effort to stall examination of the Clinton emails to protect Clinton. But that’s at odds with what our reporting showed.

It’s important to note that we don’t know what evidence the inspector general — who has broad access to internal emails, text messages and officials that reporters don’t — has gathered so far, or what he will ultimately find and conclude about McCabe’s motivation. (His report isn’t expected until March or April.)

But there are important points to consider, nonetheless. For starters, McCabe wasn’t ultimately responsible for how to proceed and what to disclose; Comey was.

More important, the crucial question inside the FBI at the time wasn’t whether Comey (and McCabe) should publicly disclose the discovery immediately. It was whether it was correct to do so at all so close to the election. The notion of revealing anything with such profound consequences for a presidential race violated both written and unwritten Justice Department guidelines against interfering with elections.

At the time top FBI officials were alerted, agents hadn’t examined the new evidence or assessed whether it would change anything in a case that had already been definitively closed.

Certainly, our reporting found that in many ways the FBI stumbled through the month between its discovery of the Clinton emails and its notification to Congress on Oct. 28, 2016. There were troubling judgments and misjudgments — fueled by excessive caution, bureaucratic considerations and turf issues — which unnecessarily left the emails unexamined for weeks, leaving open the question of whether they might reveal something new.

In late October, senior FBI officials — newly fearful of leaks about their discovery that might damage the bureau’s reputation — decided they had to disclose. It’s worth remembering that at this point the FBI was already investigating the Trump campaign’s potential collusion with Russia. Comey and his team chose to reveal the reopening of the Clinton investigation but to say nothing about the Trump probe.

In our reporting (keeping in mind, again, that the inspector general may be privy to evidence at odds with this), there was no sign that McCabe particularly resisted the Clinton announcement.

In testimony to a Senate committee, Comey later publicly offered a moral argument for the decision: He’d previously told Congress the case was closed, so the decision to examine the new emails required public disclosure. As Comey told the Senate, “I could see two doors and they were both actions. One was labelled ‘speak’; the other was labelled ‘conceal.’ … I stared at ‘speak’ and ‘conceal.’ ‘Speak’ would be really bad. There’s an election in eleven days — lordy, that would be really bad. Concealing, in my view, would be catastrophic, not just to the FBI but well beyond. And, honestly, as between really bad and catastrophic, I said to my team, ‘We got to walk into the world of really bad.’ I’ve got to tell Congress that we’re restarting this, not in some frivolous way — in a hugely significant way.”

And with that, in the view of many, the hierarchy of the FBI — far from assuring Hillary Clinton’s election as president — took a step that helped torpedo it.

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PHOTO: Hillary Clinton holds an unscheduled news conference to talk about FBI inquiries into her emails after a campaign rally in Des Moines, Iowa, October 28, 2016. REUTERS/Brian Snyder