I’m taking a “wait and see” attitude on FBI agent Peter Strzok, who is now enmeshed in a political storm involving both the Clinton and the Trump investigations. You know why? Well . . . it’s because I can’t stand the Clintons.
What difference does that make? Well, because I didn’t like them any better in 2001.
That was when I used to run the satellite U.S. attorney’s office for the Southern District of New York — the office based in White Plains that oversees federal law enforcement in six counties north of the Bronx. This venue gave me supervision for a time over a piece of the Clinton pardons investigation, the probe that arose out of clemency grants Bill Clinton issued in the last hours of his presidency. One involved four defendants convicted of a massive financial fraud in New Square (which is in Rockland County). They were members of a Hasidic upstate community that tended to vote as a bloc, and so the theory was that Clinton had commuted their prison sentences in exchange for the community’s electoral support for his wife, Hillary Clinton, who then was running for the Senate.
As readers of these columns may recall, I believe the Clinton pardons were deeply corrupt, and that the officials involved in them should never again have been permitted to hold positions of public trust. But whether people are fit for political office is a very different question from whether they should be subjected to a federal criminal prosecution. On that question, I was a strong “no.”
It didn’t matter how I felt about Bill and Hillary personally or politically — which was no secret to my law-enforcement friends and colleagues. This was a strict legal matter, and my sworn duty, like that of every other Justice Department prosecutor, was to enforce the law without fear or favor. President Clinton had the unreviewable authority to grant clemency. While the unsavory rationale for the commutations was obvious, it was far from clear that a politically motivated pardon was actionable, even if we could prove beyond a reasonable doubt that there had been a corrupt quid pro quo arrangement — which we couldn’t. End of story.
This is how it normally goes in the Justice Department and the FBI — which is not to say we haven’t come upon abnormal times.
People who work in law enforcement tend to be engaged citizens, well-informed about current events. Many of them are passionate in their political convictions. In the New York metropolitan area, those convictions tend not to jibe with mine — although rank-and-file FBI agents tend to be more conservative than their high-ranking superiors, and than prosecutors educated in elite American schools. Political differences are fodder for good-natured ribbing in the hallway or over beers after work. But they get checked at the courthouse door, even in political-corruption cases. Law enforcement is a straightforward exercise: Figure out what the facts and law are, then apply the latter to the former.
I am not claiming that there is never crossover between law and politics. There are, after all, philosophical disputes inherent in the law, and a lawyer’s adherence to one side or the other tends to track his political bent of mind. As long as these arguments are made in good faith, though, this is healthy. Ironically, in the Clinton pardons matter, I was more sympathetic to the liberal-Democrat Clintons than were some of my liberal-Democrat colleagues: I have an originalist predisposition that executive power is meant to be checked by political restraints (Congress and the ballot box) rather than by judicial means; progressives tend to see the executive law-enforcement agencies as a quasi-independent check on the chief executive, and the courts as the means of ensuring the president is not above the law. Still, these arguments take place within well-known jurisprudential lines, and they matter in only the rarest criminal investigations. By and large, even if a suspect is a Marxist, the politics of the people investigating him shouldn’t matter any more than the politics of the surgeon who operates on his aching back.
I don’t know Agent Strzok, but people who do tell me he is an exceptional intelligence agent. They say his transfer — effectively, his demotion — to the FBI’s human-resources division is exactly the sort of thing that should be celebrated . . . in Moscow.
You want to tell me he was a Hillary supporter who couldn’t abide Trump? Those attributes would have disqualified half the country from working on the Clinton emails caper, never mind half the FBI.
We have not yet seen the text messages between Strzok and FBI lawyer Lisa Page, who are said to have had an affair while working together on both the Clinton emails investigation and, for a brief time, Robert Mueller’s special-counsel investigation. But let’s assume he and Ms. Page are liberal Democrats and ardent anti-Trumpers, and that this is reflected in their exchanges, as it has been reported.
Are we now saying that whether a prosecutor or agent is qualified to work on a political-corruption case depends on his or her party affiliation or political convictions?
That would be a terrible mistake. It would do more to intrude politics into law enforcement than remove it. Bear in mind: We already have ethical standards and oaths. If an investigator knows he or she cannot be fair to a suspect, or that the investigator’s participation in the case would create a reasonable perception of bias, the investigator is obliged to recuse himself — and, failing that duty, the supervisor must disqualify the investigator. To take an obvious example, I have occasionally noted that, while I have no doubt I could be fair to Mrs. Clinton, I would be a terrible choice to lead a special-counsel investigation involving her. I’ve publicly criticized her, so my participation would create the appearance of impropriety. An investigation is supposed to give the public confidence that a matter has been scrutinized fairly, not to raise more questions — like whether the fix was in — than it answers.
In an investigation fraught with politics, Mueller is rightly faulted for staffing up with partisan Democrats. Even if he can technically rationalize some of his political-activist hires, his choices show poor judgment because they harm the credibility of his probe. (I do not believe he can rationalize the choice of Andrew Weissmann, but that’s a subject for another column.) Yet, while there is some question about whether he dragged his feet a bit, Mueller rightly removed Strzok from the case after learning about the partisan texts. (It is reported that Ms. Page had already left Mueller’s staff by then.)
Note: The removal does not mean Strzok took any offensive action; it means his continuing presence, under the circumstances, would have tainted the investigation. If the texts and other evidence indicate he and others have made investigative decisions based on political bias, then there will be a real scandal. For now, this is far from established.
What else do we know about Agent Strzok?
He is one of the investigators who interviewed then–national security adviser Michael Flynn on January 24, 2017. Flynn has now pled guilty to lying to the FBI, though, at the time, it appears that there was no good reason for the FBI to have interviewed Flynn as if he were a criminal suspect. It was appropriate for a Trump transition official and incoming national-security aide to communicate with the Russian ambassador, and the FBI had recordings of the conversations, so there was no need to ask Flynn what was discussed. Naturally, then, Trump supporters say, “Ah-hah! First Strzok gives Hillary a pass, then he entraps Trump’s guy Flynn into a process crime!”
But is that really what happened? I don’t think so.
Let’s start with Flynn. Strzok did not decide on his own to interview Flynn. We know the matter was being monitored at the highest level of the Justice Department, by then–acting attorney general Sally Yates and then–FBI director James Comey. Strzok and a colleague were assigned to interview Flynn. More importantly, Strzok apparently reported that he believed Flynn had been truthful. Shortly after the interview occurred, it was reported that the FBI had decided no action would be taken against Flynn. On March 2, Comey testified to a closed session of the House Intelligence Committee that, while Flynn may have had some honest failures of recollection during the interview, the agents who questioned him concluded that he did not lie.
Far from setting Flynn up, it seems that Strzok would exculpate him. Flynn was prosecuted not because Strzok is an anti-Trump zealot, but apparently because Strzok’s finding that Flynn was truthful was negated by Mueller’s very aggressive prosecutors. Did they decide they knew better than the experienced investigators who were in the room observing Flynn’s demeanor as he answered their questions?
Of course, the point is moot now because Flynn has admitted his guilt. Still, I wonder whether Mueller’s team informed Flynn and his counsel, prior to Flynn’s guilty plea to lying to the FBI, that the interviewing agents believed he had not lied to the FBI.
As for the Clinton emails case, I will repeat what I have been saying for over a year: The decision not to prosecute Hillary Clinton was made by Barack Obama — not by Jim Comey, not by Loretta Lynch, and certainly not by Peter Strzok.
In April 2016, President Obama effectively announced that he did not want Clinton prosecuted, publicly articulating a specious theory that she lacked intent to harm the United States (which is not an element of the offenses Clinton was investigated over), and belittling the significance of the classified information she mishandled. Thereafter, Obama’s subordinates continued going through the motions of an investigation even as they prepared to announce the decision not to charge Clinton, although the FBI had not yet interviewed Clinton and other key witnesses. The no-indictment announcement Comey made in July precisely tracked the theory Obama had posited in April.
We eventually learned that Obama himself had knowingly communicated with then–secretary of state Clinton over her unsecure, private email system regarding sensitive government matters. The Obama administration sealed these communications in order to avoid admitting the obvious: They involved matters that are presumptively classified under the applicable guidelines (set forth in Obama’s own executive order). But the bottom line is: It would not have been possible to prosecute Clinton without revealing that Obama himself had engaged in the same misconduct (albeit on a much smaller scale). Beyond that, Obama had endorsed Clinton to succeed him and she was the nominee of his party, counted on to carry his policies forward.
Meaning: There was no way — none — that Hillary Clinton was ever going to be indicted by the Obama Justice Department. The rest is just details: The failures to use grand-jury subpoenas to compel production of evidence; the Justice Department’s collusion with defense lawyers to restrict the FBI’s questioning of their clients and inspection of evidence their clients produced; the tolerance of an unethical and illegal arrangement under which subjects of the investigation were permitted to appear as lawyers for the principal subject of the investigation, regarding matters on which they had previously worked as government officials; the inexplicable grants of immunity to accomplices who should have been pressured to plead guilty and cooperate against higher-ranking conspirators; and the failure to prosecute subjects who lied to the FBI during their interviews.
It is certainly worth revisiting these indefensible episodes. It is very much worth comparing this kid-gloves treatment of Clinton to the scorched-earth tactics of the Mueller investigation. It is completely appropriate to probe the extent to which law enforcement and intelligence collection were politicized during the Obama presidency, and to ask whether Strzok was driving that train or just along for the ride.
But if you’ve made up your mind that Peter Strzok is responsible for tanking the Hillary Clinton case, and that he was putting his thumb on Mueller’s scale against the Trump administration, you are way out ahead of what we actually know — and you’re probably wrong.