There’s Something Fatally Wrong in the IG Report on the FBI and DOJ

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A few weeks ago I explained in a post that the reason the investigation into Hillary Clinton’s emails was so freely publicized in 2016 while the Russia probe remained firmly under wraps was, paradoxically, precisely because it was an essential political and procedural probe. Indeed, this was understood by all involved. Yet this false equation of the two investigations remains embedded in the Inspector General’s report itself. Indeed, the IG Report is at war with itself at various points about the nature of the investigation and whether the recovery of the Weiner/Abedin emails in late September 2016 did or should have mattered.

The Inspector General was troubled by the fact that the FBI was prioritizing the Russia probe in the fall of 2016 over the Clinton email probe. The key passage comes on page 329 of the report where the Inspector General writes that in light of Strzok and Page’s texts showing hostility to Donald Trump, “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.”

The premise here is that the decision to prioritize the Russia probe over the emails found on the Weiner laptop requires an explanation or is suspicious on its face. But this is frankly absurd. By September/October 2016, the Clinton emails story had been investigated for more than a year. Senior officials are sometimes warned over sloppy handling of what is called “spillage” of classified information. In extreme cases they can lose their security clearances. There’s virtually no record of anyone in a comparable position to Secretary Clinton being charged with a crime over anything like this. This, as I note, is key to what the probe was so freely discussed: it was always largely political and to a great degree theater. However that may be, the matter was extensively investigated and investigators found no basis for filing charges. FBI Director James Comey still felt it was necessary to publicly chastise Clinton in order to protect himself and the FBI from claims of bias. But the decision was clear: no basis for filing charges.

The discovery of disgraced former Rep. Anthony Weiner’s laptop, which contained his wife, Huma Abedin’s emails with Secretary Clinton, was at most notionally new evidence. There was very little chance that anything discovered in those emails would change the decision not to charge Clinton with a crime. Indeed, the people who ran the investigation told the IG as much. The report quotes Bill Priestap, head of the Counter Intelligence Division as follows …

[E]ven with this new, yes, we’ve got to review it. Yes, it may contain evidence we didn’t know, but I’d be shocked if it’s evidence that’s going to change the outcome of the case because, again…aside from this, did we see enough information previously in which I felt confident that we had gotten to the bottom of the, of the issue? I did. … our work on [Midyear] was extensive and included the review of tens of thousands of emails, (over 7 million email fragments), and interviews of more than 70 individuals. We amassed and analyzed an enormous volume of information, reaching the recommendation in July 2016 that no prosecution be initiated. I sincerely doubted that the emails identified on [the Weiner] laptop were likely to alter our informed view of the matter, and therefore did not prioritize the follow-on work over higher priority matters. (p.297)

As Priestap makes clear, even though it was important to review the emails, as a matter of completeness, he did not see it as a high priority because it was highly unlikely they would change the investigators’ view of the case. In the event, they turned out to be duplicates of emails the FBI had already examined.

And what was the “higher priority” matter Priestap was referring to: the Russia probe. As I said above, the Inspector General was troubled by the fact that FBI leadership treated the Russia probe as a higher priority. But consider the matter. The Clinton emails had been thoroughly investigated. The purportedly new evidence had little chance of changing the verdict of the investigation in the eyes of the people who made the key decisions, as opposed to the agents in New York. What’s more, whatever you make of the emails matter, it was literally all in the past, years in the past. There were no potential crimes in motion. In the other case, the FBI had an active and expanding investigation into whether a major party presidential campaign had either been infiltrated by or was conspiring with a hostile foreign power. This was in motion and the election was six weeks away. Again, to ask which was the higher priority borders on the absurd.

Making the IG Report even more curious is that in criticizing Comey’s decision to send the October 2016 letter to Congress it says that the FBI “overestimated” the possibility that the laptop emails “would be significant to the Clinton email investigation. (p.373)” In other words, the IG Report is literally on both sides of the question. It’s skeptical of the decision to de-prioritize the laptop search and also says the FBI overestimated the chances that anything on the laptop could matter. Let’s put a pin in this odd contradiction and look at just why Comey decided to send the letter.

Comey claimed that fears of leaks did not play a role in his decision. Basically all his advisors said the opposite. One of the big mysteries of the IG Report is what happened to the investigation into reports of anti-Clinton bias in the FBI Field Office in New York and claims that anti-Clinton agents had leaked the news of the laptop to Rudy Giuliani in order to restart the Clinton probe. (Reps. Elijah Cummings and John Conyers requested Inspector General Horowitz review this matter all the way back on November 4th, 2016.) I have heard suggestions that this part of the investigation will be addressed in a subsequent IG Report. But I’ve been able to find no concrete evidence of that. Even if that is the case, since the Inspector General looked so hard for anti-Trump bias in the FBI leadership in Washington, it seems odd to deal separately with possible anti-Clinton biases of those whose potential leaking that leadership team was apparently reacting to.

Rudy Giuliani’s name literally is not mentioned once in the report. But there is substantial evidence that he was leaked information about the Weiner laptop which he then took to Fox News. In April 2018, in expectation of this question beyond addressed in the IG Report, Reuters reported that “law enforcement officials previously told Reuters the information was leaked to former New York Mayor Rudy Giuliani, an adviser to the Trump campaign who subsequently discussed the contents on Fox News.”

Indeed, there are other hints in the report that FBI leadership was wary of hostility toward Clinton and the disposition of the email investigation both from within the ranks and from retired agents. On October 7th, 2016, for instance, the President of the Society of Former Special Agents of the FBI sent an email to Associate Deputy Director David Bowdich telling him that he continued to “hear negative comments about the Bureau’s handling of the Clinton email controversy from former agents. This is after a period where things seemed to quiet and comments mellowed. The renewed negative comments appeared to be timed with the release of additional emails in the Clinton situation and with the Director’s recent congressional testimony.”

On October 21st, Strzok briefed a group of retired FBI personnel in a conference call to try to calm the clamor over how the investigation was handled. Lisa Page recalled “[W]e got a ton of criticism from the formers about the, why we let her off the hook, and why she should have been prosecuted, and why if she had, if they had done this, they would have prosecuted, all those sort of criticism that you have surely heard.”

These are just a few examples from the report itself. It’s clear that lots of former special agents were very upset that Clinton hadn’t been indicted and FBI leadership was trying to explain their decision-making and calm the clamor. In this context, note that when Giuliani was pressed on how he’d known about the restarting of the Clinton investigation he claimed that he’d only been in contact with retired agents, notwithstanding Reuters law enforcement sources who said he’d been leaked the information directly.

Here’s where the new information from Thursday evening comes into play. Last night on Fox News Rep. Devin Nunes (R-CA) said that in late September 2016 “good FBI agents” from the New York field office told him and members of the House Intelligence Committee (HPSCI) that they’d found new Clinton emails on Anthony Weiner’s laptop. Nunes presented these agents as “whistleblowers” and that can be the case when government employees believe they’ve uncovered wrong-doing. But the timing suggests they more or less immediately went to congressional Republicans, about six weeks before the election. The emails were discovered on September 26th. They were talking Nunes in “late September.” That means they had to be “whistleblowing” in four days or less. That sounds more like politicized leaking of details of an on-going investigation than anything that could pass as whistle-blowing. If the “good FBI agents” went to Nunes and other congressional Republicans one or two days after the laptop was discovered that means they didn’t allow any reasonable amount of time to decide the top officials in DC were dragging their feet. They were clearly trying to force the matter.

Step back from the intricacies of the IG Report on the FBI and DOJ and there’s a lot of reason to believe that James Comey made what all consider a bad decision in large part because he and his advisors feared leaks and that these leaks would encourage claims of political bias against Comey and the FBI. There’s also quite a lot of evidence that fear of those leaks was driven by hostility to Clinton among agents in New York as well as members of the fraternity of retired FBI Agents. This hostility or bias toward Clinton seems like a very big driver of events in the fall of 2016. This would not absolve Comey of responsibility for his actions. But it seems impossible to understand the fullness of the situation without trying to get to the bottom of this part of the story. And yet, again, it’s largely ignored in the IG Report. No mention of Giuliani. No mention of the “good FBI agents” who went to House Republicans. I can only imagine what the texts of those “good FBI agents” might contain if scrutinized like Strzok’s and Page’s have been.

As I noted above, it’s possible that this is part of a future IG Report. There’s conflicting word on that. Even if that’s the case, presenting only one distorted side of the story in this report seems highly questionable. However that may be, we still need to get to the bottom of what happened here and why. Because the decision to send that letter on October 28th clearly had a big impact on the election of Donald Trump. And it never should have happened.

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