Law & the Courts

Yes, Investigate the Investigators

Robert Mueller in 2013 (Reuters file photo: Jonathan Ernst)

The Department of Justice and the FBI are developing a credibility problem. The last two weeks have brought a blizzard of revelations about the anti-Trump political predilections of top FBI officials and prosecutors in Special Counsel Robert Mueller’s office, perhaps none more eye-popping than a just-revealed text from Peter Strzok, a top FBI intelligence agent.

In August 2016, Strzok, who played a lead-investigator role in the Hillary Clinton–emails investigation, flatly stated that the FBI could not “take that risk,” referring to the possibility that Donald Trump might be elected president. He made the statement in a message to Lisa Page, a bureau lawyer with whom he was having an extramarital affair. Strzok referred to an alternative FBI “path” regarding Trump’s “unlikely” election that Page had proposed during a meeting they’d attended in “Andy’s office” — meaning deputy director Andrew McCabe, the bureau’s number-two official, second only to then-director James Comey.

While more context is necessary to understand the meaning of the text and what transpired in the meeting in McCabe’s office, the message raises the possibility that top bureau officials were infecting investigations with their personal political views. This would be a concern in any circumstance, but especially in this one. The FBI’s Clinton-email and Trump-Russia investigations have been extremely fraught politically — with the latter morphing into Mueller’s Russia probe, which conceivably could result in an impeachment referral.

Around the time of Strzok’s message, the FBI and the Obama Justice Department had come into possession of the anti-Trump “dossier” compiled by former British spy Christopher Steele. The dossier was opposition research commissioned by the Clinton campaign and the Democratic National Committee, through their lawyers. They had retained a research company, Fusion GPS, which hired Steele, who evidently paid Russian sources for what appears to be dodgy information.

We now know that one of Fusion’s point people on the project was a Russia analyst named Nellie Ohr, the wife of Bruce Ohr, the Obama Justice Department’s associate deputy attorney general. He was the right hand of Sally Yates, the famously anti-Trump deputy AG who was eventually — and justifiably — fired by Trump for insubordination (when she was his inherited acting AG). Bruce Ohr held meetings with Steele and Fusion founder Glenn Simpson (and has now been demoted over them). During the summer of 2016, the Justice Department and the bureau sought a warrant from a secret federal court to conduct surveillance of a Trump-campaign official. It is reported that agents used information from the dossier to obtain the warrant, even though, as recently as March 2017, then-director Comey dismissed Steele’s work as “salacious and unverified” in congressional testimony. For months, the House Intelligence Committee has been pressing for answers about whether and how this Clinton-campaign document was used to obtain the authority for the surveillance; the Justice Department and the FBI won’t answer and refuse to produce the warrant.

Everything that has happened in the Trump probe stands out against a backdrop of leniency in the Clinton investigation. While Mueller has prosecuted two Trump associates for lying to the FBI, the Obama Justice Department gave a pass to Mrs. Clinton and her subordinates, who gave the FBI misinformation about such key matters as whether Clinton understood markings in classified documents and whether her aides knew about her homebrew server system during their State Department service. Mueller’s team conducted a predawn raid at gunpoint in executing a search warrant on Paul Manafort’s home while Manafort was cooperating with congressional committees. When it came to the Clinton case, though, the Justice Department not only eschewed search warrants, or even mere subpoenas, but they never even took possession of the DNC server alleged to have been hacked by Russian operatives.

The irregularities in the Clinton-emails investigation are breathtaking: the failure to use the grand jury to compel the production of key physical evidence; the Justice Department’s collaboration with defense lawyers to restrict the FBI’s ability to pursue obvious lines of inquiry and examine digital evidence; immunity grants to suspects who should have been charged with crimes and pressured to cooperate; allowing subjects of the investigation to be present for each other’s FBI interviews and even to act as lawyers for Clinton, in violation of legal and ethical rules; Comey’s preparation of a statement exonerating Clinton months before the investigation was complete and key witnesses — including Clinton herself — were interviewed; and the shameful tarmac meeting between Obama attorney general Loretta Lynch and Mrs. Clinton’s husband just days before Mrs. Clinton sat for a perfunctory FBI interview (after which Comey announced the decision not to charge her).

We believe that Russia’s interference in the election is worth investigating and that dismissing Robert Mueller would be a mistake, both politically and on the merits. Yet there are enough questions about the handling of the Clinton and Trump matters that a thorough fact-finding investigation is warranted, and one of greater independence and scope than we are likely to get from the DOJ’s Obama-appointed inspector general. The department needs to appoint a scrupulous, well-regarded United States Attorney from outside the Washington area to scrutinize the conduct of the Justice Department and the FBI in connection with the 2016 election. There now is enough of a cloud around these investigations that the department owes the public nothing less.


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