On Thursday, the Justice Department inspector general released a sprawling 568-page report on the handling of the Hillary Clinton emails investigation in 2015-16 by the FBI and DOJ. There’s far too much in the report to detail here in one bite, as it covered (among other things):
- The decision not to charge Secretary Clinton or anyone else for the mishandling of State Department emails, some containing classified information, by routing them through her now-infamous “homebrew” server (a decision that looks ever more reckless now that we have all focused more intently on the voracious email-hacking appetite of hostile powers such as Russia and China);
- The also now-notorious tarmac meeting between Attorney General Loretta Lynch and Bill Clinton, and the impact of Lynch’s refusal to recuse herself from the investigation;
- The decisions by Jim Comey to make public statements in July and October 2016 in the midst of the election;
- The ethical conflicts of FBI deputy director Andrew McCabe (over his wife’s receipt of campaign donations from Clinton ally Terry McAuliffe), and McCabe’s role in slow-walking the followup investigation of Anthony Weiner’s laptop;
- The ethical conflicts of Assistant Attorney General Peter Kadzik and his ties to John Podesta and the Clinton campaign;
- Jim Comey’s own use of a Gmail account for official FBI business, as well as that of others at the FBI;
- The affair between FBI agent Peter Strzok and FBI attorney Lisa Page and their various text messages (some more related to the Russia investigation, which was outside the scope of the IG report) bashing Trump;
- The ethical tangles of the FBI’s decision to allow Hillary Clinton to be represented at her interview by lawyers who were also key witnesses;
- Pervasive FBI leaks and the receipt of various financial benefits by FBI agents from the media; and
- An FBI Twitter document dump on the Clinton Foundation a week before the election.
Nobody comes out of this report looking good, and it is hard to blame voters who come away feeling vindicated in the view that that the entire class of elected officials, civil servants, and the press are a corrupt racket.
Two particularly prominent people deserve our attention for their role in this entire fiasco: President Obama and his second attorney general, Loretta Lynch. Neither of them comes out of this unscathed, and the IG report confirms and collects in one official source a number of points that have been previously disputed, denied, or reported in fragments. In so doing, it offers a clearer understanding of how our institutions and respect for the rule of law came to be so degraded that a President Donald J. Trump became even thinkable. For now, I will focus specifically on what the IG report says about Obama himself.
All The President’s Messages
Presidents, while being ultimately constitutionally responsible for taking care that the laws be faithfully executed, are traditionally not supposed to insert themselves into the criminal investigation of particular individuals. That’s especially true when the investigation focuses on their friends and political allies, and even more so when they themselves may be personally implicated. President Trump has received torrents of criticism for breaching these norms, and much of that criticism is justified even when he was acting legally within the scope of his formal, constitutional Article II powers to do so. The Hillary emails investigation was compromised from the outset by Obama’s own personal interference. Pages 66-69 of the report make clear what impact this had.
Obama repeatedly went on national television, beginning with an October 2015 60 Minutes interview, to argue his own conclusion that Hillary had done nothing to warrant any prosecution. Career DOJ prosecutors were aghast:
Former President Obama’s comments caused concern among FBI officials about the potential impact on the investigation. Former EAD John Giacalone told the OIG, “We open up criminal investigations. And you have the President of the United States saying this is just a mistake. . . . That’s a problem, right?” Former AD Randy Coleman expressed the same concern, stating, “[The FBI had] a group of guys in here, professionals, that are conducting an investigation. And the . . . President of the United States just came out and said there’s no there there.” Coleman said that he would have expected someone in FBI or Department leadership to contact one of Obama’s national security officials, and “tell [him or her], hey knock it off.” Michael Steinbach, the former EAD for the National Security Branch, told the OIG that the comments generated “controversy” within the FBI. Steinbach stated, “You’re prejudging the results of an investigation before they really even have been started. . . .That’s . . . hugely problematic for us.” Department prosecutors also were concerned. Responding to an email from Laufman about Obama’s 60 Minutes interview, Toscas stated, “Saw this. And as [one of the prosecutors] and I discussed last week, of course it had no—and will never have any—effect whatsoever on our work and our independent judgment.” Prosecutor 4 told the OIG that Obama’s statement was the genesis of the FBI’s suspicions that the Department’s leadership was politically biased. This prosecutor stated, “I know that the FBI considered those [statements] inappropriate. And that it . . . [generated] a suspicion that there was a political bias . . . going on from the Executive Branch.”
Even his attorney general at the time, Loretta Lynch, was taken aback by Obama’s public meddling:
Lynch stated, “I never spoke to the President directly about it, because I never spoke to him about any case or investigation. He didn’t speak to me about it either.” She told the OIG that she did not think the President should have made the comment on 60 Minutes. She stated, “I don’t know where it came from. And I don’t know, I don’t know why he would have thought that either, to be honest with you. Because, to me, anyone looking at this case would have seen a national security component to it. So I don’t, I truly do not know where he got that from.”
It kept going, with additional statements by White House press secretary Josh Earnest that produced a similar reaction, as well as concern that Earnest was claiming to know things that nobody in the DOJ or FBI had told him, or at least would admit to telling him:
Lynch’s Chief of Staff stated that Department officials were “very upset” about Earnest’s statement, because “as far as we knew, no one at Department of Justice had spoken to anyone in the White House about it.” The Chief of Staff told
the OIG that they were particularly concerned by Earnest’s statement that former Secretary Clinton was not a target. The Chief of Staff said that she spoke to officials in the White House Counsel’s Office to tell them that the Department did not know where Earnest was getting his information…[senior career prosecutor George] Toscas emailed Laufman a second time, stating, “Please feel free to share this with the whole team (if you haven’t already).” During his interview with the OIG, Toscas described Earnest’s statements as “goofy” and “ridiculous,” expressing frustration that he had to address comments by the White House when preparing Lynch to testify before Congress because of the perception of political bias that they created.
But as the election heated up, Obama wouldn’t stop:
Lynch said that she also had a discussion with the White House Counsel after she testified, and that during this discussion he acknowledged that the comments should not have happened. However, former President Obama again made public comments about the Midyear investigation in an interview with FOX News Sunday on April 10, 2016. Obama stated that while former Secretary Clinton had been “careless” in managing her emails while she was Secretary of State, she would never intentionally do anything to endanger the security of the United States with her emails.
Jim Comey went so far as to suggest to Sally Yates in April 2016 that a special prosecutor should be appointed (a point I and others were publicly arguing at the time), with Obama’s comments being one of the reasons to question whether Lynch’s DOJ could be impartial:
Comey said that his comment to Yates about appointing a special counsel also was motivated by concerns about the appearance of political bias in the Department. He said that these concerns were based on the overall political environment—given then President Obama’s comments about the investigation, he did not think the Department leadership could credibly complete the investigation without charges.
The same reasoning helped drive Comey’s decision to take his own statement public in July:
[P]resident [Obama’]s comments obviously weighed on me as well. You’ve got the President who has already said there’s no there there…. And so all of that creates a situation where how do we get out of this without grievous damage to the institution?
Obama’s public opinions on the investigation were not merely impartial musings or pure partisanship; he was himself part of the story:
FBI analysts and Prosecutor 2 told us that former President Barack Obama was one of the 13 individuals with whom Clinton had direct contact using her clintonemail.com account. Obama, like other high level government officials, used a pseudonym for his username on his official government email account.
This was previously known, of course; Politico reported it as far back as September 2016, and our own Andy McCarthy has written about it repeatedly. Yet, Obama in 2015 had publicly, falsely denied knowing about the private email address, saying he only learned of its use for official business “The same time everybody else learned it through news reports.” We now know this was a lie.
When Comey tried to refer to this in his July statement, it got scrubbed of the reference to exchanging emails with Obama from foreign soil:
A June 25 draft added a sentence to a paragraph that summarized the factors that led the FBI to conclude that it was possible that hostile actors accessed former Secretary Clinton’s private server. This new sentence stated, “She also used her personal email extensively while outside the United States, including from the territory of sophisticated adversaries. That use included an email exchange with the President while Secretary Clinton was on [sic] the territory of such an adversary.” On June 30, Rybicki [Comey’s Chief of Staff] circulated another version that changed the second sentence to remove the reference to the President, replacing it with “another senior government official.” The final version of the statement omitted this reference altogether and instead read, “She also used her personal email extensively while outside the United States, including sending and receiving work related emails in the territory of sophisticated adversaries.” FBI emails indicate that the decision to remove this sentence was based on concerns about litigation risk under the Privacy Act.
Think about that last line: The Privacy Act, as the IG report notes, “prohibits an agency from disclosing a record about an individual to a person, or to another government agency, from a ‘system of records’ absent the written consent of the individual,” unless there is a legitimate law enforcement purpose. But there would only be direct Privacy Act litigation risk from naming President Obama in the statement if the FBI was worried that Obama himself would sue for violations of his privacy (this seems unlikely), and perhaps more importantly, if they had already determined that there was no chance that Obama would consent in writing to having this fact publicly disclosed. An alternative, plausible possibility is that the FBI feared that this would open the door to more requests to see what Obama had been doing. One of Strzok’s text messages flagged the change, and suggests this:
On June 30, 2016, Strzok sent the following text message to Page: “ . . . Just left Bill. . . . He changed President to ‘another senior government official.’” Based on context, Strzok told us “Bill” referred to [FBI Assistant Director ] Priestap. Strzok stated:
My recollection is that the early Comey speech drafts included references to emails that Secretary Clinton had with President Obama and I think there was some conversation about, well do we want to be that specific? Is there some, out of deference to executive communications, do we want to do that? And I remember that discussion occurring. I remember the decision was made to take it out. I know I was not the person who did it.
(On the other hand, while a September 2, 2016 text from Page to Strzok stated that “potus wants to know everything we are doing,” both Strzok and Page told the IG that the text related to the Russia probe, not the then-inactive Clinton email investigation).
President Obama was not the chief miscreant in the IG report; it was his secretary of state who used a private email server for sensitive official diplomatic business, his attorney general who failed to recuse herself from the investigation and otherwise convinced the FBI that the investigation would not be handled impartially by the Justice Department (the IG report mentions her 569 times in 568 pages), and his FBI Director who decided that the only way out of the mess handed to him by Obama, Clinton and Lynch was to take his case to the public on two occasions in the midst of a presidential campaign. But Obama should not walk away with his reputation untarnished by the report’s harsh spotlight on how he contributed to that mess. Remember that the next time someone tells you his administration had no scandals worse than the time he wore a tan suit.