The Referee

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Posted in US politics Tagged with: , ,

The report of the Inspector General of the Department of Justice on the FBI’s investigation of Hillary Clinton’s email practices has been extensively hashed over since it was published Thursday. You can read about it, if you like, here or here or here.

What’s lacking is vital context. Yet tucked away on the last two public pages of the 568-page report are some tantalizing findings destined to eventually become the fundamental background to the story.

Inspector General Michael Horowitz’s report covered eight broad topics, as described by its executive summary –

  • The FBI investigation, code-named “Midyear Exam,” of former Secretary of State Clinton’s email server;
  • Former FBI director James Comey’s go-it-alone statement about the FBI’s findings in July, 2016;
  • The Department of Justice’s subsequent decision not to charge Clinton with a crime;
  • The discovery in September of some unexamined Clinton emails on Anthony Weiner’s laptop computer, and the month that passed before the FBI sought a warrant to examine the machine;
  •  Comey’s decision to notify Congressional leaders in October that the investigation had been reopened;
  • Some recusal issues;
  • Various text messages among agents;
  • And the FBI’s policies regarding Twitter announcements.

Indeed, the report presents an unusually thorough re-examination of the issues.  Agents assigned to the IG’s office sifted through 1.2 million documents and interviewed more than a hundred witnesses, some of them more than once.

News organizations concentrated on two aspects:  Comey’s decision to make a unilateral announcement of FBI findings on July 5, in which he scolded candidate Clinton for having been “extremely careless” while recommending publicly that no charges against her be brought; and  his decision to notify Congress on October 28 that new emails had been found.  Both decisions are held by partisans to have influenced the election to some unknowable degree.

In both cases, Horowitz was blistering. Of the July statement, its contents undisclosed in advance to his Justice Department superiors, the IG wrote that Comey had been both insubordinate and heedless of well-established FBI rules. He should have made his recommendation privately and allowed (or forced) President Obama’s Justice Department to make the call (and take the heat) that no charges would be brought.  Of October, Horowitz wrote:

… Comey’s description of his choice as being between “two doors,” one labeled “speak” and one labeled “conceal,” was a false dichotomy. The two doors were actually labeled “follow policy/practice” and “depart from policy/practice.” His task was not to conduct an ad hoc comparison of case-specific outcomes and risks. Rather, the burden was on him to justify an extraordinary departure from these established norms, policies, and precedent.

Receiving slightly more attention, at least in conservative media, was a text exchange between the agent leading the investigation into the Trump campaign’s Russian connections and a high-ranking FBI lawyer, then his girlfriend.  Lisa Page wrote on August 8, “[Trump’s] not ever going to become president, right? Right?”  “No. No he won’t. We’ll stop it,” replied special agent Peter Strzok.

(Remember, Paul Manafort was still managing the Trump campaign at the time; ten days later he resigned.) In September Strzok was promoted to Deputy Assistant Director of the Espionage Section.  In October, he drafted Comey’s letter to Congressional Republicans – the one widely seen as harmful to Clinton’s candidacy.)

Overlooked entirely in the coverage, as far as I could tell, were four pages at the end of Chapter Twelve, “Allegations that Department and FBI Employees Improperly Disclosed Non-Public Information” – in other words, leaks.

Horowitz expressed “profound concerns” about the “volume and extent” of unauthorized communications, despite “strict limits,” which had been “widely ignored.” The IG’s ability to identify leakers was hampered by two factors. Horowitz wrote:  sensitive information was widely shared, often involving dozens, and in some cases, more than a hundred persons; second, the normal strict rules governing disclosure appeared to have been widely ignored during the month before the election.

Which leads to those two pages at the end of the report. (I couldn’t think of a way to link them but you can easily scroll down here to find them at the bottom – Attachments G and H.) They contain two “link charts,” or schematic diagrams, depicting verified communications between FBI employees and media representatives, in April/May and October 2016.

Why April/May? That was a period in which Comey was pressuring the Department of Justice to move more quickly to obtain possession of the laptops Clinton lawyers had used to sort personal from State Department messages, telling DOJ supervisors that he might appoint a special prosecutor if he couldn’t obtain them. (Horowitz found no evidence that he seriously considered it.) Already Comey had begun to contemplate the unilateral announcement he would make in July, fearing that the Obama administration could no longer announce a decision not to prosecute Clinton in a way that the public would find objective and credible.

Why October?  That was the period of intense behind-the-scenes maneuvering over the existence of the Weiner emails. After Comey revealed their existence in his letter to Congressional leaders, Wall Street Journal reporter Devlin Barrett followed up with a blockbuster story, FBI in Internal Feud over Hillary Clinton Probe. Barret disclosed, among other things, that an FBI investigation of the Clinton Foundation had begun.

Deputy FBI Director Andrew McCabe was later fired, at the IG’s instigation, and referred for possible criminal prosecution, for having confirmed the existence of the second investigation to Barrett, and for having been less than candid when interviewed about his actions. McCabe has said that he was defending the FBI (and himself) against earlier unauthorized leaks accusing him of resisting the investigation.

No details are included in those diagrams about the identities of the callers and the called, but it seems a reasonable bet that the centerpiece of “Network Two” is reporter Barrett.   Whoever it is, you get from those 112 calls a pretty good idea of what true shoe-leather reporting looks like these days. And remember, the charts reflect FBI contacts only with journalists; Congressional staffers are not mentioned.  (They may yet be if the Democrats regain the House.)

Comey has insisted, both in his book, A Higher Loyalty: Truth, Lies, and Leadership, and in interviews with agents working for the IG, that the threat of leaks had no effect on his decision to write that letter on the eve of the election. Some senior officials who worked for him weren’t so sure.  His general counsel, James Baker, told the IG, “If we didn’t put out a letter, somebody is going to leak it.”  Rudolph Giuliani, a US attorney before he becoming mayor of New York, was widely involved as a go-between between FBI-connected sources and reporters at the time.

In each case, Comey’s defense against the Inspector General’s criticisms has been that he felt the FBI – and perhaps the nation itself – were  caught in a “500-year flood” and that extraordinary measures were required to deal with it.   Precisely this sense of the extraordinary is missing from Horowitz’s report.

The last word in these events will belong to journalists, first, and then historians. Among the former, reporter Barrett will likely be the most important. He left the WSJ  for The Washington Post in February 2017 and the next year helped the Post share a Pulitzer Prize with The New York Times for national reporting on Russian interference in the 2016 presidential election and its connections to the Trump campaign, the President-elect’s transition team and his eventual administration.

Comey sought to play the role of referee. My hunch is that eventually he will be seen to have performed a service similar to that of another outsize regulator with an independent streak.  Former Federal Reserve Chairman Paul Volcker, also 6 feet 8 inches tall, began a costly campaign against price inflation in the late 1970s.  Despite expert skepticism and political criticism, he won his battle over a ten years and subsequently was celebrated at a hero.

Upholding post-Watergate standards at the Justice Department (Comey was Deputy Attorney General 2003-05) and the FBI during three presidential administrations is not the same as making monetary policy..  Yet there may be something in the experience of growing up tall that predisposes some men to act in certain ways when confronted with emergency. Whether you think the comparison is apt depends on what you expect will happen to President Trump and the Congressional Republicans who support him.