Law & the Courts

Hillary’s E-mails and the Justice Department

(Reuters photo: Lucy Nicholson)
The DOJ Inspector General’s review will focus on the FBI, not DOJ.

The Justice Department’s inspector general has announced that his office will conduct a review that will focus principally on FBI director James Comey’s public statements regarding the Clinton e-mails investigation during the 2016 campaign.

These were the three highly unusual announcements describing the status of the investigation in which no charges were filed: (1) the detailed presentation on July 5 of: the evidence uncovered against Hillary Clinton, a legal analysis of the applicable criminal statute, Comey’s determination that an indictment was not warranted, and his opinion that no reasonable prosecutor could disagree with his assessment; (2) the October 28 letter to Congress indicating that the Clinton e-mails case was being reopened owing to newly discovered evidence (derived from the separate investigation of disgraced former representative Anthony Weiner [D., N.Y.], and specifically from a computer shared by Weiner and his estranged wife, Clinton aide Huma Abedin); and, finally, (3) the announcement on November 6 – virtually the eve of the election – reaffirming Comey’s decision (announced July 5) not to seek an indictment.

It is undoubtedly appropriate for Michael Horowitz, DOJ’s inspector general, to consider whether these actions departed from law-enforcement protocols – as I have previously explained. But it is worth noting what the IG will not be reviewing: the Justice Department’s conduct.

The IG’s press release makes no mention of the Justice Department’s decision not to open a grand-jury investigation, despite significant concrete evidence of criminal wrongdoing – the decision that deprived the FBI of the use of subpoenas to compel the production of evidence. Neither will the IG be reviewing the multiple irregular immunity agreements granted by the Justice Department in a case in which no criminal charges were filed, including agreements that reportedly called for the destruction of evidence (laptop computers of top Clinton aides) after a strangely limited examination of their potentially incriminating contents.

There will similarly be no inquiry into why the Justice Department allowed subjects of the investigation (who had been granted immunity from prosecution) to appear as lawyers for the main subject of the investigation – despite ethical and statutory prohibitions on such conduct. Nor, evidently, will the IG be probing why the attorney general furtively met with the spouse of the main subject of the investigation – the spouse who just happens to be the president who launched the attorney general to national prominence by appointing her as a district U.S. attorney in the Nineties – on an airport tarmac just days before Mrs. Clinton submitted to a perfunctory FBI interview, after which came Comey’s announcement that charges would not be filed.

According to the press release, the IG will be looking at other matters related to the Clinton investigation. These include: whether the FBI’s deputy director should have been recused because his wife had been sponsored in a run for public office by Clinton insider Terry McAuliffe; whether FBI and DOJ officials improperly disclosed non-public information; and whether the FBI’s response to a Freedom of Information Act request – which included information about President Clinton’s infamous Marc Rich pardon – was timed (the week before the election) to damage Mrs. Clinton’s campaign.

It appears that the decisions that actually tanked the Clinton investigation will not be scrutinized.

Nevertheless, it appears that the decisions that actually tanked the Clinton investigation will not be scrutinized. The IG would likely say that those matters are related to the exercise of prosecutorial authority, and are thus best left to Justice’s Office of Professional Responsibility. But of course, OPR reports directly to the attorney general. Only the IG has authority to investigate independent of DOJ supervision.

Horowitz, a very fine lawyer and prosecutor who (like Jim Comey and yours truly) was an assistant U.S. attorney for the Southern District of New York for several years, was appointed Justice’s IG by President Obama in 2012. I suspect the Trump administration will want its own appointee. In a show of bipartisanship in 2001, President Bush retained Glenn Fine, the IG President Clinton had appointed shortly before leaving office; thereafter, Fine aggressively investigated Bush’s Justice Department . . . and was retained by Obama until retiring in late 2010 – ultimately to be replaced by Horowitz.

#related#It is unlikely that Trump will want to repeat that history. Look for the Justice Department to have its first Republican-appointed IG in decades. Assuming that happens, we will have to see whether the review announced today proceeds as planned and whether, if it does, its scope is altered.

What we do know is that there has been a stark difference between the Obama Justice Department’s kid-gloves treatment of FBI investigations touching on the Democratic presidential nominee, and the aggressive approach (including FISA warrants, as I discussed in Wednesday’s column) that DOJ took on investigations touching on the Republican presidential nominee. I’ll have more to say about that over the weekend.    

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