The Situation: Pam Bondi Announces a Ghost Investigation

The Situation on Tuesday refused to engage the lies of Tulsi Gabbard and also refused to “freak out about the supposed ‘investigation’ of [former President] Obama and the other supposed conspirators that will likely get announced now that Fox News has dutifully reported that the Justice Department has ‘received’ the DNI’s referral” of Russiagate material.

The actual announcement came like clockwork the following day, but it had a surprising element. “Justice Department Announces Formation of Strike Force to Assess Evidence Publicized by ODNI,” reads the headline. Now “Strike Force” is an interesting choice of phrase to describe what is presumably a team of FBI agents and prosecutors reviewing documents. Normally, the phrase refers to an integrated investigative and prosecutorial team in Washington that represents some kind of coordinated effort to address an issue affecting field offices around the country—not a document review team set up to look at material sent over from the intelligence community. But this is not the statement’s most surprising element.

The press release, dated July 23, reads in its entirety:

WASHINGTON – Today, the Department of Justice announced the formation of a Strike Force to assess the evidence publicized by Director of National Intelligence Tulsi Gabbard and investigate potential next legal steps which might stem from DNI Gabbard’s disclosures.

This Department takes alleged weaponization of the intelligence community with the utmost seriousness.

Upon the formation of the Strike Force, Attorney General Pamela Bondi stated:

“The Department of Justice is proud to work with my friend Director Gabbard and we are grateful for her partnership in delivering accountability for the American people. We will investigate these troubling disclosures fully and leave no stone unturned to deliver justice.”

Notice what word never appears in the statement: “investigation.”

The word “investigate” appears twice, once in the first paragraph and once in the last. In the word’s first use, the matter being investigated is not whether Obama and the intelligence leadership engaged in a treasonous conspiracy, merely what, if any, “potential next legal steps ... might stem from DNI Gabbard’s disclosures.” The Justice Department, in other words, has formed a “Strike Force”—note the capital letters—to investigate “potential next legal steps” which “might” be available.

The second time the word “investigate” appears, the object of the verb is “these troubling disclosures.” Once again, the Justice Department is not announcing that it is investigating any allegations of wrongdoing—or even any fact pattern. It is announcing that it is investigating “disclosures,” which is to say that it is reading the papers that the DNI sent over.

This is not, to put it mildly, the way the Justice Department announces a real investigation—when it does so at all. Compare it, for example, to the first time the Justice Department and FBI announced that they were investigating Russian interference in the 2016 election—which was in then-FBI Director James Comey’s 2017 congressional testimony. At that time, he said:

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government's efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia's efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.

It reads a bit differently, no?

But maybe you don’t like Comey, and you want a different example. Okay, then, sticking with the same subject matter, let’s take a look at Attorney General Bill Barr’s order appointing John Durham to look into the handling of the Russia investigation. It directed:

The Special Counsel is authorized to investigate whether any federal official, employee, or any other person or entity violated the law in connection with the intelligence, counter-intelligence, or law-enforcement activities directed at the 2016 presidential campaigns, individuals associated with those campaigns, and individuals associated with the administration of President Donald J. Trump, including but not limited to Crossfire Hurricane and the investigation of Special Counsel Robert S. Mueller, Ill.

That reads a bit differently too, no?

When the Justice Department announces a real investigation—which it often does not do—it tends to say clearly that it is investigating something, not merely reading material sent over from another agency. It tends to give some clarity as to the subject matter of the investigation. And it tends to wait on announcing a “Strike Force” until it can actually do these things.

So what’s going on with this statement?

I have no access to any non-public information on this subject, so the following is a guess, but for what it’s worth, here’s what I think is happening.

There is no investigation.

There may be what’s called an assessment, discussed below, going on, but I actually doubt even that. I think the attorney general just issued a press release announcing nothing more than that the department would conduct a preliminary review of material from the DNI.

There is no investigation because an investigation requires a criminal predicate, some actual reason to think someone has violated the law, and nothing that the DNI sent over remotely suggests that a crime has been committed. Even what the rules call a “preliminary investigation” requires “information or an allegation indicating the existence of a circumstance” in which someone is committing or has committed a crime or someone is likely to be the victim of a crime. So the Justice Department can’t just announce an FBI investigation consistent with its rules. 

It is possible that what Bondi has announced is what’s called an “assessment”—which is an FBI review of a matter that is something less than an investigation. An assessment requires less predication, though it is usually used for getting a sense of risk of things that might be happening, not things that didn’t happen more than eight years ago. The FBI can initiate one “to detect, obtain information about, or prevent or protect against federal crimes or threats to the national security or to collect foreign intelligence.”

But the tools available to agents in assessments are highly limited.

It’s also possible that the material has been folded into the ghost investigation triggered by the earlier referral from CIA Director John Ratcliff, and that the so-called Strike Force is handling both referrals. That investigation, if you believe Fox News, seems to actually exist, at least on paper.

But it’s also possible that there isn’t even an assessment going on, just a look-see at the material—what’s sometimes called an “initial review.”

Neither an assessment nor an initial review—which are tools for taking a preliminary look at a subject and determining whether a predicate exists for an actual investigation—remotely warrants the appointment of a “Strike Force” or a public statement by the attorney general promising to “leave no stone unturned to deliver justice.”

Unless, of course, you’re Pam Bondi and the Jeffrey Epstein case is nipping at your heels and you’re desperate to change the subject, and the president whom you serve has just gone bananas at the DNI’s supposed revelations about Russia in 2016 and has just declared his predecessor guilty of treason, and it is now your job to prosecute a matter for which there is exactly zero evidence.

In that case, you might have to announce that the Justice Department is looking at the matter.

You might feel a great deal of pressure to announce an investigation, and you might—when told that there really is nothing to investigate here, that the inspector general looked at it all, that John Durham looked at it all, that the statutes of limitations have long ago run, and that there isn’t the remotest whiff of wrongdoing on the part of Obama or intelligence leadership anyway—decide to announce an investigation nonetheless.

And then you might have your staff release a statement that gets as close to announcing a federal criminal investigation as humanly possible without actually saying more than that the Justice Department will, in fact, read the DNI’s material. You might, in fact, put together a statement designed to make people think you have announced an investigation, even though you have, in fact, done nothing of the kind.

In an attempt to ascertain whether this was really what’s happening, I sought clarification from the Justice Department, asking precisely what sort of an investigation the “Strike Force” was conducting. A department spokeswoman responded promptly with a link to the statement and two passages excerpted and highlighted as follows:

Today, the Department of Justice announced the formation of a Strike Force to assess the evidence publicized by Director of National Intelligence Tulsi Gabbard and investigate potential next legal steps which might stem from DNI Gabbard’s disclosures.

…

Upon the formation of the Strike Force, Attorney General Pamela Bondi stated: “The Department of Justice is proud to work with my friend Director Gabbard and we are grateful for her partnership in delivering accountability for the American people. We will investigate these troubling disclosures fully and leave no stone unturned to deliver justice.”

“I am aware of the text of the statement, thanks,” I replied. “I'm asking for clarification of what precisely the strike force has been authorized to do. Is this a predicated investigation, an assessment, an initial review, or something else?”

The spokeswoman replied verbatim with the same message.

Sigh.

The Situation continues tomorrow.