Published by The Lawfare Institute
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It is perhaps not a surprise that the Justice Department inspector general’s report on the FBI’s handling of the Clinton email investigation quickly became, for all sides, vindication for the narratives they already believed. For Republicans seeking to discredit the Russia investigation, the report is all about text exchanges in which certain FBI employees exhibited inappropriate hostility and political opposition to then-candidate Donald Trump:
In reviewing this report it is clear the FBI and DOJ withheld relevant text communications between Lisa Page and Peter Strzok.— House Judiciary ⚖ (@HouseJudiciary) June 14, 2018
The House Judiciary Committee intends to issue a subpoena to Peter Strzok to compel his testimony before the Committees. #IGReport
For Hillary Clinton’s camp, the report proves that the FBI—and James Comey, in particular—cost their candidate the election:
Director Comey’s mishandling of the publicity around the Clinton email campaign all accrued to the benefit of then candidate Trump, not the other way around. Democrats said it then, and the Inspector General makes that clear now.— Chuck Schumer (@SenSchumer) June 14, 2018
And for Comey’s many detractors, the IG’s conclusion that “it was extraordinary and insubordinate for Comey to conceal his intentions from his superiors” in giving his July 5 press conference and that “Comey made a serious error of judgment” in writing to Congress the following October proved the case they had been making all along:
In reality, the 500-page report, “A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election,” is a complicated document. It paints a rich and exhaustive portrait of multiple organizations involved in a multifaceted investigative undertaking over a protracted period of time amid intense political pressure. It reveals a lot that is unflattering about both the organizations and many people within them—about individual decisions by people of different stripes throughout the Justice Department and FBI hierarchies, about the high-level choices of leaders, about simple errors and miscommunications, and about the bad behavior of some individuals. Details will continue to emerge as people pore through the document over the coming days.
The following observations about the report are thus not meant as any kind of exhaustive account; they are nine major takeaways from our initial review of the material.
First, the report validates the essential integrity of the investigation. It offers no reason to believe that, in the main, the Clinton email investigation was not a genuine effort by the FBI to learn the facts and apply the law to them in a fashion consistent with Justice Department policy and practice. This point will tend to get lost in the politics of competitive victimization, in which the Clinton forces want to blame their candidate’s ultimate electoral defeat on the bureau and the president wants to ascribe to federal law enforcement a “deep state” conspiracy to conduct a “WITCH HUNT!” against him and go easy on his opponent’s “crimes.” But it is actually the critical starting place. For all that the document finds fault with the bureau—disagreeing with key judgments, accusing the FBI director of “insubordination,” and charging individual agents and employees of “cast[ing] a cloud” over the agency—it never questions that the FBI as an institution was pursuing its proper mission: conducting a serious investigation in good faith.
Second, and relatedly, the IG broadly concludes that the investigation’s judgments were not influenced by politics. Time after time, when the inspector general evaluates how individual decisions were made, he concludes that there were legitimate reasons for the manner in which the FBI obtained evidence and interviewed witnesses—reasons that were consistent with past practice and with Justice Department policy. There are some important caveats: The IG’s office questions the decision to let Clinton be interviewed in the presence of two of her lawyers—a decision the report describes as “inconsistent with typical investigative strategy,” though it notes that there is “no persuasive evidence” their presence “influenced Clinton’s interview.” More importantly, as we discuss below, the inspector general was rightly disturbed by the highly political text-message exchanges between FBI lawyer Lisa Page and counterintelligence agent Peter Strzok. Even here, though, the investigation “did not find evidence to connect the political views expressed in these messages to the specific investigative decisions that we reviewed.” Those steps, the investigation finds, were made by a larger team and “were not unreasonable.” More broadly, although the report is unsparing toward Comey, it finds explicitly that his actions were not influenced by political preferences.
Third, the IG broadly validates the investigation’s conclusion: to decline to seek charges against Clinton or anyone else. The report spends a number of pages detailing the prosecutors’ reasons for not recommending charges. The prosecutors told the IG of a host of reasons why they couldn’t establish the necessary criminal intent to bring charges under the relevant statutes. Not one of the emails in question had the required classification markers, for example. No evidence supported the notion that Clinton or the people sending emails to her knew the contents were classified. Clinton and her correspondents sent the emails to government officers in support of official business, and there exists no history of charging people under such circumstances. None of the subjects intended to send classified information to unauthorized parties or to store such information on unauthorized networks. The senders frequently refrained from using specific classified details, facts or terms in their emails. Mishandling of classified information at the State Department was such a widespread practice that it was difficult for prosecutors to establish specific criminal intent on behalf of Clinton or the other senders. The report concludes that prosecutors applied those facts to the relevant statutes and the Justice Department’s policies on those statutes in a sober and unbiased manner: “We found that the prosecutors’ decision was based on their assessment of the facts, the law, and past Department practice in cases involving these statutes. We did not identify evidence of bias or improper considerations.”
Fourth, while the investigation was broadly conducted with integrity and reached the right answer, there were significant errors in the conduct of the probe. This is unsurprising with such a complex undertaking done under intense pressure; mistakes happen when human systems function under stressful conditions. That said, some of the errors were significant and fateful.
For example, on Oct. 30, 2016, the team conducting the email investigation—code-named the Midyear inquiry—obtained a search warrant for the laptop of Anthony Weiner. The IG report finds that every fact that was cited in the justification for the warrant was known by FBI executives, and the FBI Midyear team, no later than Sept. 29. Some portion of the criticism Comey received for his decision to notify Congress on Oct. 28 about the reopened investigation stems from the fact that this notification came only 12 days before the presidential election. And when Comey sent his letter to Congress, it was unclear whether the investigation could be resolved before voters went to the polls. The IG report makes clear that Comey’s revelation could have taken place a month earlier, when the stakes would have been significantly lower.
The report does not explain precisely why this happened. But the timeline is fairly clear. On Sept. 26, 2016, the New York Field Office obtained a search warrant for Weiner’s iPhone, iPad and laptop computer. In reviewing the laptop later that day, the case agents realized there were more than 300,000 emails on the computer, including one between Clinton and her aide Huma Abedin. Deputy Director Andrew McCabe and 39 other senior FBI executives were briefed on the existence of Weiner’s laptop and the potentially relevant emails on Sept. 28, and McCabe says he told Comey about the laptop “right around the time” he found out about it—but the IG found no evidence that anyone at the FBI took action on the laptop until Oct. 24. The issue came up again only because a New York field agent raised serious concerns with the U.S. Attorney’s Office for the Southern District of New York about the lack of action.
The inspector general dismisses various explanations offered for this error by FBI leadership and the Midyear team as “unpersuasive” and “illogical.” The report does sound a note of concern here regarding Strzok’s involvement in light of his political text messages to Page: Strzok played a role in the logjam that kept action on the laptop from moving forward, and the report states that, “we did not have confidence that Strzok’s decision to prioritize the Russia investigation over following up on the Midyear-related investigative lead discovered on the Weiner laptop was free from bias.”
But broadly speaking, the report makes the error look mostly like a bureaucratic screw-up. Leadership was busy and distracted: McCabe’s September description of the laptop issue to Comey was either so brief or so inaccurate that Comey said it “didn’t index” with him that the laptop was a potentially significant piece of new information. Meanwhile, so many different corners of the Justice Department were involved with the laptop that no one quite knew who was handling what. As a result, the New York Field Office was waiting for the Midyear team to follow up on the laptop after the Sept. 28 meeting, and the Midyear team—many of its members by now engrossed in the Russia investigation—was waiting for the New York Field Office to follow up.
Fifth, the report portrays Comey’s conduct at key junctures in an exceedingly negative light, but it slams him in a fashion that doesn’t break new ground either factually or analytically. Because of Comey’s congressional testimony and book, there isn’t much here that we didn’t already know. The IG’s factual findings square entirely with Comey’s version of what occurred—in fact, in some places his testimony to the inspector general’s office matches statements in his book and on his press tour almost word for word. Although the overall impression is certainly different from the former director’s account of his own behavior, the report’s criticism mirrors the critique of Comey that many people have been making, loudly, since October 2016.
The first significant event at issue is Comey’s move to unilaterally announce the decision to not charge Clinton, to include criticism of her in his statement, and to do so without conferring with the attorney general or deputy attorney general. As he has said in prior forums, Comey told the OIG that he included criticism of Clinton’s uncharged conduct because “unusual transparency … was necessary for an unprecedented situation” and that such transparency “was the best chance we had of having the American people have confidence that the justice system works[.]” An FBI official told the OIG that the decision to include the criticism “was a signal that ... we weren’t just letting her off the hook.”
Comey also ordered FBI staff not to inform the Justice Department about his decision to make a statement because he did not want the deputy attorney general to tell him not to do so. “Comey told the OIG that he did not credibly think that [Attorney General Loretta] Lynch and [Deputy Attorney General Sally] Yates were going to stop him when he informed them about his plans on the morning of his press conference, and that he wrestled with whether to tell them at all.” The OIG notes that “Comey did not raise any of these concerns with Lynch or Yates” and is clear that investigators think he should have.
Comey has repeatedly described his dilemma regarding the newly discovered emails shortly before the election as a choice between concealing or revealing what the FBI was doing—and he appears to have used that metaphor once again in his testimony here. The IG report is emphatic that this was a false choice and insists that Comey’s actual choice was between adhering to or departing from Justice Department practice. The report makes clear the OIG’s belief that he was wrong to choose the latter course.
What is important in the criticism of Comey is not any revelation about his behavior but the judgment.
One revelation that seems to have picked up steam is the OIG finding that Comey “used a personal email account to conduct unclassified FBI business” and that he did so in circumstances that were “inconsistent with Department policy.” Hillary Clinton herself has seized the moment, tweeting the tidbit with the line “But my emails.” As juicy as this may seem to some, it does not have the makings of a genuine scandal. According to the report, Comey used his personal email for unclassified matters, and there isn’t the slightest hint that he discussed anything sensitive or remotely close to classified information on that account. There is no comparison to what Clinton was accused of having done. It is squarely in the category of minor breach of protocol, rather than possible security infraction.
Sixth, the inspector general’s portrait of Lynch and Yates is gentler than his treatment of Comey, but the portrait is unflattering in a mirror-image sort of way. Comey draws the report’s fire because he arrogated to himself the power to make decisions that properly belonged to Yates and Lynch. But the report is also clear that Yates and particularly Lynch were excessively passive in asserting their own authority. Faced with an FBI director whose modus operandi was to make important decisions on his own authority and dare his superiors to order him to stop, they consistently failed to take that action. If Comey’s behavior in July 2016 was insubordination, they tolerated it. And if his October letter was bad judgment, they didn’t try to stop him.
The report calls out Lynch for failing to address the image concerns generated by her tarmac meeting with former President Bill Clinton in June 2016, though it stops short of saying she should have recused herself from the email investigation entirely. Lynch told investigators that she chose not to step away from the investigation out of fear that it would “create a misimpression” about the tarmac meeting. But if her intention was to remain an active part of the probe moving forward, she failed to fulfil that role. When Comey told Lynch he was holding a July 5 press conference on the investigation, she didn’t ask him what he planned to announce. Similarly, after Comey informed the Justice Department—through his chief of staff, Jim Rybicki—of his decision to notify Congress on Oct. 28, neither Lynch nor Yates told Comey he should not send the letter. On multiple occasions, Lynch and Yates chose not to engage with Comey directly. At key moments, the problem was not just that Comey chose to disobey policy but, rather, that nobody ordered him not to.
Seventh, the report documents significant instances of bad behavior by particular individuals, which are sure to feed distrust of federal law enforcement at precisely the time when Trump and his allies are seeking to stoke it. Beyond the fault the report finds with FBI and Justice Department leaders, it cites in detail politically charged texts, instant messages and emails exchanged by five FBI employees that raised doubts about the work of those individuals and the bureau more broadly in its handling of the Clinton email investigation. Much has previously been said about the exchanges between Strzok, a counterintelligence agent who later worked on the FBI’s investigation into Russian election interference in 2016, and Page, who was special counsel to then-Deputy FBI Director Andrew McCabe as well as liaison to the 2016 Russia investigation and the Clinton email investigation. The three other FBI employees cited in the report are identified as Agent 1, one of four case agents assigned to the Clinton email investigation; Agent 5, who was assigned to the filter team on the email investigation; and Attorney 2, a lawyer assigned to the Clinton email investigation, the 2016 Russia investigation and the Mueller investigation.
“At a minimum,” the report says, “we found that the employees’ use of FBI systems and devices to send the identified messages demonstrated extremely poor judgment and a gross lack of professionalism.” All five told the IG that they had viewed their conversations as personal and private, even though some exchanges took place on their FBI-issued phones.
The report notes that “our review did not find documentary or testimonial evidence directly connecting the political views these employees expressed in their text messages and instant messages to the specific investigative decisions we reviewed.” But the inspector general is not wrong that “when one senior FBI official, Strzok, who was helping to lead the Russia investigation at the time, conveys in a text message to another senior FBI official, Page, that ‘we’ll stop’ candidate Trump from being elected—after other extensive text messages between the two disparaging candidate Trump—it is not only indicative of a biased state of mind but, even more seriously, implies a willingness to take official action to impact the presidential candidate’s electoral prospects.”
“This is,” the report notes, “antithetical to the core values of the FBI and the Department of Justice” and the employees’ conduct stoked public doubts about the FBI’s handling of the Clinton email investigation and its political independence.
In addition to citing these agents’ political conversations, the report discusses FBI employees’ use of personal email for official business and the growth in communication between FBI employees and journalists, though bureau policy limits the number of employees who are authorized to speak to the media. The report found that the number of FBI employees who had access to leaked information is substantial. Citing the “harm caused by leaks, fear of potential leaks and a culture of unauthorized media contacts,” the report says the leaks highlight the need to change the cultural attitude at the bureau regarding unauthorized media contacts.
Eighth, interestingly, the report’s conclusions are so far being widely accepted by those it concerns. The FBI’s formal response to the report, included within the document, states that the bureau accepts the OIG findings and is working to take remedial action. Director Christopher Wray held a press conference Thursday afternoon in which he underscored the same point. For his part, Comey published an op-ed in the New York Times shortly after the report was released. He said, “I do not agree with all of the inspector general’s conclusions, but I respect the work of his office and salute its professionalism. All of our leaders need to understand that accountability and transparency are essential to the functioning of our democracy, even when it involves criticism. This is how the process is supposed to work.”
Finally, the narrative Trump will use this report to advance has no actual merit—but enough incidents within the IG’s narrative will seem to give credence to it so as to give it continued political effect. White House Press Secretary Sarah Huckabee Sanders said Thursday that the OIG report “reaffirmed the president’s suspicions about Comey’s conduct and about the political bias of some members of the FBI.” Rep. Jim Jordan, an ally of the president, tweeted that “The FBI didn’t want Trump to be President … This is as wrong as it gets.”
Trump’s lawyer and adviser Rudy Giuliani put it more colorfully: “So, I believe that Rod Rosenstein and Jeff Sessions have a chance to redeem themselves. And that chance comes tomorrow. It doesn't go beyond tomorrow. Tomorrow, Mueller should be suspended, and honest people should be brought in, impartial people, to investigate these people like Strzok. Strzok should be in jail by the end of next week.”
It is perhaps too much to ask that people—particularly the president—embrace the complexity of this story. But if the IG report shows one thing, it is that the story of the Clinton email investigation has no simple narrative arc.