Peter VAN BUREN
It will be easy to miss the most important point amid the partisan bleating over what the Department of Justice Office of Inspector General report on the FBI’s Clinton email investigation really means.
While each side will find the evidence they want to find proving the FBI, with James Comey as director, helped/hurt Hillary Clinton and/or maybe Donald Trump, the real takeaway is this: the FBI influenced the election of a president.
In January 2017 the Inspector General for the Department of Justice, Michael Horowitz (who previously worked on the 2012 study of “Fast and Furious”), opened his probe into the FBI’s Clinton email investigation, including public statements Comey made at critical moments in the presidential campaign. Horowitz’s focus was always to be on how the FBI did its work, not to re-litigate the case against Clinton. Nor did the IG plan to look into anything regarding Russiagate.
In a damning passage, the 568 page report found it “extraordinary and insubordinate for Comey to conceal his intentions from his superiors… for the admitted purpose of preventing them from telling him not to make the statement, and to instruct his subordinates in the FBI to do the same. By departing so clearly and dramatically from FBI and department norms, the decisions negatively impacted the perception of the FBI and the department as fair administrators of justice.” Comey’s drafting of a press release announcing no prosecution for Clinton, written before the full investigation was even completed, is given a light touch though in the report, along the lines of roughly preparing for the conclusion based on early indications.
Attorney General Loretta Lynch is criticized for not being more sensitive to public perceptions when she agreed to meet privately with Bill Clinton aboard an airplane as the FBI investigation into Hillary unfolded. “Lynch’s failure to recognize the appearance problem… and to take action to cut the visit short was an error in judgment.” Her statements later about her decision not to recuse further “created public confusion and didn’t adequately address the situation.”
The report also criticizes in depth FBI agents Peter Strzok and Lisa Page, who exchanged texts disparaging Trump before moving from the Clinton email to the Russiagate investigation. Those texts “brought discredit” to the FBI and sowed public doubt about the investigation, including one exchange that read, “Page: “[Trump’s] not ever going to become president, right? Strzok: “No. No he’s not. We’ll stop it.” Another Strzok document stated “we know foreign actors obtained access to some Clinton emails, including at least one secret message.”
Page and Strzok also discussed cutting back the number of investigators present for Clinton’s in-person interview in light of the fact she might soon be president, and thus their new boss. Someone identified only as Agent One went on to refer to Clinton as “the President” and in a message told a friend “I’m with her.” The FBI also allowed Clinton’s lawyers to attend her interview, even though they were also witnesses to a possible crimes committed by Clinton.
Page and Strzok were among five FBI officials the report found expressed hostility toward Trump and have been referred to the FBI’s internal disciple system. The report otherwise makes only wishy-washy recommendations about things every agent should already know, like “adopting a policy addressing the appropriateness of department employees discussing the conduct of uncharged individuals in public statements.”
But at the end of it all, the details really don’t matter, because the report broadly found no political bias, no purposeful efforts or strategy to sway the election. In aviation disaster terms, it was all pilot error. Like an accident of sorts, as opposed to the pilot boarding drunk, but the plane crashed and killed 300 people either way.
The report is already being welcomed by Democrats — who feel Comey shattered Clinton’s chances of winning the election by reopening the email probe just days before the election — and by Republicans, who feel Comey let Clinton off easy. Many are now celebrating it was only gross incompetence, unethical behavior, serial bad judgment, and insubordination that led the FBI to help determine the election. No Constitutional crisis.
A lot of details in those 568 pages to yet fully parse, but at first glance there is not much worthy of prosecution (though Attorney General Jeff Sessions says he will review the report for possible prosecutions and IG Horowitz will testify in front of Congress on Monday and may reveal more information.) Each side will point to the IG’s conclusion of “no bias” to shut down calls for this or that in a tsunami of blaming each other. In that sense, the IG just poured a can of jet fuel onto the fires of the 2016 election and walked away to watch it burn.
One concrete outcome, however, is to weaken a line of prosecution for Special Counsel Robert Mueller. The chief Russiagate investigator has just seen a key witness degraded — any defense lawyer will characterize Comey’s testimony as tainted now — and a possible example of obstruction weakened. As justification for firing Comey, the White House initially pointed to an earlier Justice Department memo criticizing Comey for many of the same actions now highlighted by the IG (Trump later added concerns about the handling of Russiagate.) The report thus underscores one of the stated reasons for Comey’s dismissal. Firing someone for incompetence isn’t obstructing justice; it’s the boss’ job.
It will be too easy, however, to miss the most important conclusion of the report: there is no longer a way to claim America’s internal intelligence agency, the FBI, did not play a role in the 2016 election. There is only to argue which side they favored and whether they meddled via clumsiness, as a coordinated action, or as a chaotic cluster of competing pro- and anti- Clinton/Trump factions inside the Bureau. And that’s the tally before anyone brings up the FBI’s use of a human informant inside the Trump campaign, the FBI’s use of both FISA warrants and pseudo-legal warrantless surveillance against key members of the Trump team, the FBI’s use of opposition research from the Steele Dossier, and so on.
The good news is the Deep State seems less competent than we originally feared. But even if one fully accepts the IG report’s conclusion that all this— and there’s a lot — was not intentional, at a minimum it makes clear to those watching ahead of 2020 what tools are available and the impact they can have. While we continue to look for the bad guy abroad, we have already met the enemy and he is us.