Law & the Courts

The IG’s Report May Be Half-Baked

The 568-page report by U.S. Department of Justice Inspector General Michael Horowitz entitled “A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election” is seen shortly after its release in Washington, June 14, 2018. (Jim Bourg/Reuters)
But who knows?

You’ve got to hand it to Michael Horowitz: The Justice Department inspector general’s much-anticipated report on the Clinton-emails investigation may be half-baked, but if it is, it is the most comprehensive, meticulously detailed, carefully documented, thoughtfully reasoned epic in the history of half-bakery.

Why say do I say the report “may be half-baked”? Why don’t I just come out and declare, “The report is half-baked”? Well, I figure if I write this column in the IG’s elusive style, we’ll have the Rosetta Stone we need to decipher the report.

See, you probably sense that I believe the report is half-baked. But if I say it “may be” half-baked . . . well, technically that means it may not be, too. I mean, who really knows, right?

If that annoys you, try wading through 568 pages of this stuff, particularly on the central issue of the investigators’ anti-Trump bias. The report acknowledges that contempt for Trump was pervasive among several of the top FBI and DOJ officials making decisions about the investigation. So this deep-seated bias must have affected the decision-making, right? Well, the report concludes, who really knows?

Not in so many words, of course. The trick here is the premise the IG establishes from the start: It’s not my job to draw firm conclusions about why things happened the way they did. In fact, it’s not even my job to determine whether investigative decisions were right or wrong. The cop-out is that we are dealing here with “discretionary” calls; therefore, the IG rationalizes, the investigators must be given very broad latitude. Consequently, the IG says his job is not to determine whether any particular decision was correct; just whether, on some otherworldly scale of reasonableness, the decision was defensible. And he makes that determination by looking at every decision in isolation.

But is that the way we evaluate decisions in the real world?

In every criminal trial, the defense lawyer tries to sow reasonable doubt by depicting every allegation, every factual transaction, as if it stood alone. In a drug case, if the defendant was photographed delivering a brown paper bag on Wednesday, the lawyer argues, “Well, we don’t have X-ray vision, how do we really know there was heroin in the bag?” The jurors are urged that when they consider what happened Wednesday, there is only Wednesday; they must put out of their minds that text from Tuesday, when the defendant told his girlfriend, “I always deliver the ‘product’ in paper bags.”

Fortunately, the judge ends up explaining to the jury that, down here on Planet Earth, common sense applies. In our everyday lives, we don’t look at related events in isolation; we view them in conjunction because they read on each other. Let’s say on Monday I confide to my friend that I can’t stand Bob, and on Tuesday I tell Bob I can’t join him for dinner because I have other plans. It may or may not be true that I have other plans, but common sense tells you my disdain for Bob has factored into the decision — even if I don’t announce that fact to Bob.

For all his assiduous attention to detail, IG Horowitz has weaved a no-common-sense report.

On August 8, 2016, FBI lawyer Lisa Page, borderline hysterical, texts her lover, agent Peter Strzok, about GOP candidate Donald Trump: “He’s not ever going to become president, right? Right?!”

Strzok replies, “No. No he won’t. We’ll stop it.”

Now mind you, Page isn’t just any old lawyer; she is counsel to the FBI’s deputy director (Andrew McCabe) and involved in virtually every significant decision the bureau makes. And Strzok is not any old agent; he is deputy assistant director and one of the FBI’s top counterespionage agents — and he steered both relevant investigations, Clinton-emails and Trump-Russia.

This August 8 text exchange does not occur in a vacuum. It is part of ceaseless stream of anti-Trump bile. It is, moreover, just a week before the infamous text in which we learn that top-level bureau officials met in the deputy director’s office to discuss what they saw as the harrowing possibility of a Trump presidency; Strzok urged that, though highly unlikely, this prospect was so intolerable that the bureau needed an “insurance policy” against it — i.e., the Russia investigation.

The August 8 text also occurs against a backdrop in which the FBI has rushed to close the Clinton-emails investigation on an arbitrary deadline for patently political reasons — no other criminal investigation is guided by the electoral calendar. And it occurs at the moment the FBI is moving aggressively to turn its counterintelligence powers against the Trump campaign: An informant has already been deployed, intelligence agents are mobilizing, foreign intelligence contacts have been tapped, and the bureau will soon submit to the FISA court an application to surveil Trump adviser Carter Page — an application that breaks every rule in the book: anonymous foreign sources spouting multiple hearsay, no corroboration, no disclosure to the court that it comes from the opposition presidential campaign, no explanation that the foreigner who supplied the unverified allegations has been booted from the investigation for lying, etc.

Yet you’re not supposed to string any of that together. On August 8, Strzok vows that the FBI will “stop” Trump, but if you’re asked to evaluate the agents’ motivation for actions that helped Clinton on a different day, you’re supposed to pretend that August 8 never happened — that the striving for a case against Trump at the same time the case against Hillary was being buried never happened.

Utterly biased people may have made manifestly flawed decisions, but as long as they were not blatantly irrational decisions, we’re going to call them justifiable and move on.

How does the IG pull this off? Two ways.

The first, as mentioned above, is methodology. By disavowing any intention to pass judgment on the rightness of any particular investigative decision, by announcing upfront that he is confining himself to an assessment of whether the decisions were rational, Horowitz reads motivation out of the equation. If there were two investigative options — e.g., (1) give immunity to Paul Combetta (the service technician for Clinton’s server who lied to the FBI and destroyed evidence) or (2) prosecute him for false statements — the IG says his analysis is limited to whether the option chosen was objectively defensible.

This turns out to be an abstract analysis with a lot of gobbledygook about whether the prosecution would have served federal interests, whether Combetta was undermined by bad lawyering, etc. The IG is going to tell you that while immunity might not have been the best choice, it was a defensible choice — it enabled the FBI to get his testimony faster (i.e., to lie to them in a more timely fashion on the artificially compressed deadline they’d established for closing the case without charges). What is Horowitz not going to consider? That a hundred times out of a hundred, in cases not involving Hillary Clinton’s presidential candidacy, most normally aggressive federal prosecutors, including Trump-Russia prosecutor Robert Mueller, would have charged Combetta and squeezed him to roll over on his confederates.

Instead, Horowitz says it was a rational decision, so we’re done with that one. Whoa, whoa, wait a second. Was it an appropriate decision? Was it made because they were in a rush to close the case so that Clinton (their preferred candidate) could run against Trump (whom they were determined to “stop”) without the cloud of an investigation hanging over her?

The IG won’t answer that question — not without a canyon’s worth of wiggle room. Utterly biased people may have made manifestly flawed decisions, he tells us, but as long as they were not blatantly irrational decisions, we’re going to call them justifiable and move on. But were the decisions politicized? If a biased person makes a less than optimal decision, isn’t there an itty-bitty possibility that the bias clouded his judgment?

In essence, the IG answers, “Who really knows?” . . . except he says it in a way that enables the FBI to pretend he has found no evidence of bias at all. Observe this gem, from the report’s executive summary:

We did not find documentary or testimonial evidence that improper considerations, including political bias, directly affected the specific investigative decisions.

Directly affected? What does that mean? Do the FBI and Obama Justice Department have to stamp the “I’m with Her” logo on Combetta’s immunity agreement before we can say bias directly affected the decision? Could bias have indirectly affected the decision?

Who really knows, right?

The IG’s second tack involves the facts he chooses to present. The report is truly half-baked because it omits half the story — all Clinton emails, no Trump-Russia. Of course, that’s neither how the cases evolved, nor how the investigators looked at them.

When Ted Cruz dropped out of the GOP presidential race, making Trump the de facto nominee, the very first thing Strzok said upon hearing the news from Page was, “Now the pressure really starts to finish MYE” — i.e., “Mid Year Exam,” the code name for the Clinton caper. The best way to “stop” Trump was to free Hillary to beat him. So, the bureau simultaneously labored to close the case on her and invent a case on him.

In the blink of an eye, then-director Comey was briefing Obama’s National Security Council on Carter Page; the Obama intelligence agencies were tapping their foreign partners, targeting Trump-campaign advisers to run informants at, and internalizing the Steele dossier. While the FBI scooped up the last laptops it needed to complete the predetermined closing of the emails probe, Attorney General Lynch had her convenient tarmac chat with Bill Clinton, and the bureau conducted the perfunctory interview with Hillary — an interview so pointless that the FBI and Justice Department did not object to the presence of Mrs. Clinton’s co-conspirators in the room, even though the IG report concedes that this flouted elementary investigative protocols.

Meanwhile, here is Strzok, having finished the Clinton interview and closed out the emails case, preparing to wing his way to London to conduct some real interviews — interviews with witnesses who might help him “stop” Trump:

And damn this feels momentous. Because this matters. The other one did, too, but that was to ensure that we didn’t F something up. This matters because this MATTERS.

Get it? This, the Trump case, “MATTERS” in comparison to the Clinton case. The only thing that mattered in the Clinton case was that the FBI avoid doing anything too grossly indefensible in implementing the months-long strategy to close the case without charges after appearing to do an energetic investigation. But the Trump case matters because it “MATTERS” — because in the Trump case, Strzok and Page and the others actually get to do what the FBI usually does: make a case on a bad guy we have to “stop” — informants, wiretaps, subpoenas, predawn search warrants with guns drawn, charging people who lie to us, threatening decades of imprisonment against witnesses we’re trying to flip.

The candidate they were almost certain would win got the case dropped.

How do you best evaluate the FBI’s approach to the Clinton case? Well, if I may invoke that term again, common sense says you look at how the same agents handled another case which bore on the same event that informed their every decision, the 2016 election. The question is not whether every Clinton-case decision was defensible considered in isolation; it is whether the quality of justice afforded to two sides of the same continuum by the same agents at the same time was . . . the same.

It wasn’t. One was kid gloves, the other was scorched earth. The candidate they hoped would win got the former; the candidate they needed to “stop” got the latter. The candidate they were almost certain would win got the case dropped; the candidate they needed an “insurance policy” against . . . well, whaddya know — the case against him is still going . . . and going . . . and going.

Did bias have anything to do with that? In 568 pages that leave out the Trump half of the story, we’re told the answer is, “Who really knows?”

I think we know.

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