No, IG Horowitz Did Not Endorse the FBI’s Predication for the Crossfire Hurricane Investigation

Among the least assured and least compelling findings in Justice Department Inspector General Michael Horowitz’s scathing report about the FBI’s Russiagate abuses was his assessment that the bureau’s probe of the 2016 Trump campaign was adequately “predicated” – the term used in law enforcement to refer to the basis for opening an investigation. It is remarkable then, though not surprising, to find the collusion ad infinitum crowd citing Horowitz’s report as a shield against the much dimmer assessment of the FBI’s predication in Special Counsel John Durham’s report.

To begin with, there is a “two ships passing in the night” quality to this comparison. Indeed, Durham is complimentary of the work done by Horowitz and makes no secret of building on it in many places. If you had just read what Durham has written, and had tuned out the peanut gallery, you’d be surprised at the suggestion by some commentators that he and Horowitz are deeply at odds. In any event, on predication, although the inspector general and the special counsel were looking at the same event, they were evaluating it through different prisms.

Horowitz’s analysis focused on whether the investigation, which the FBI dubbed “Crossfire Hurricane,” was opened in violation of the FBI’s Domestic Investigations and Operations Guide (DIOG), which is approved by the Justice Department. Because the IG’s bailiwick is misconduct, Horowitz could not have been clearer that he was refraining from making any judgment about whether the decision to open the investigation was prudent, or even responsible. His narrow inquiry was whether the decision was defensible under the guidelines. Horowitz concluded that it was, expressly because the guidelines state such a “low threshold” for predicating a full-blown investigation – an “articulable factual basis” that, if true, “reasonably” indicated that either a federal crime or a threat to national, or both, had occurred or was occurring.

Not only did Horowitz take the position that it was not his place “to second-guess discretionary judgments”; he also went the extra mile of giving agents the benefit of the doubt, regardless of whether they deserved such deference under the circumstances.

As a result, in discussing both Horowitz’s report on the Trump investigation and his separate report on the Clinton-emails probe, the bureau’s apologists habitually distort his conclusions about political bias – as if he found none. To the contrary, the IG reports are replete with evidence of shocking political bias on the part of key investigators, and Horowitz condemns it. But in discussing investigative decisions, he stresses that if there was a potentially legitimate basis for a particular decision, he presumed that the agent made the decision for that legitimate reason and not due to bias.

To my mind, this is wrongheaded. I could see it if we were talking about a modest amount of bias evidence in the context of one or two decisions. But these IG reports documented an immense amount of bias in the context of numerous decisions – all of which were made in a manner consistent with the bias. Sure, it may be too presumptuous to say we can read an investigator’s mind and conclusively say this or that judgment was made for a good or bad reason. But when a series of actions by more than one biased person lines up with the bias, it is counterintuitive to conclude that bias infected no particular decision – that everything must have been done by the book.

It is important, too, to understand what goes into crafting investigative guidelines. The Justice Department obviously wants FBI agents to perform in an exemplary manner. Nevertheless, DOJ does not want to create standards that enable suspects and defendants to claim that evidence should be suppressed or cases thrown out, even if the Constitution has not been violated, because agents failed to satisfy rigorous guidelines. With this in mind, the DIOG standards tend to be quite forgiving. (In addition, DOJ takes pains to insist that its promulgation of standards for the FBI is purely discretionary and does not vest suspects with additional safeguards beyond what the Constitution and other federal law minimally provide.)

Now, does this mean DOJ approves of FBI agents’ meeting only low-threshold standards? Of course not. It means that, in a guidance book it understandably fears defense lawyers will try to use against the government, DOJ will only write low-threshold standards. In the real world of investigations, DOJ expects that FBI supervisors will instruct and encourage their subordinates to exceed those modest written standards. (Clearly, that didn’t happen in Crossfire Hurricane.)

Durham’s report, by contrast, is not a narrow inquiry into whether the FBI committed misconduct as measured by its low-threshold standards. Durham’s burden was to explain the genesis of the investigation, including whether the investigative judgments were reasonable.

That inquiry is not limited to reading what the DIOG says, although that is surely a part of it. It is, more comprehensively, an assessment of what was done in light of all the surrounding circumstances, such as:

• The fact that the investigation was an intrusion into our electoral system.
• The fact that the guidelines admonish the FBI to refrain from more intrusive means when less intrusive means will do.
• The fact that in similar circumstances involving the Clinton campaign (i.e., information that malign foreign actors could be trying to compromise the candidate) the FBI employed kid-gloves and resisted the urge (to the limited extent there may have been one) to subject the Clinton campaign to a full-blown investigation.
• The fact that there were rudimentary investigative steps (such as interviewing available sources of key information) that the FBI failed to perform before leaping to the commencement of a full-blown investigation.
• And the fact that the information on which the FBI relied for predication was sketchy and ambiguous.

On that last point, I point readers not only to our editorial’s discussion of the farcical George Papadopoulos information – the supposed “suggest[ion] that the Trump team had received some kind of suggestion” about potential Russian assistance. Durham also deconstructs the FBI’s misplaced emphasis on the claim that the information came from a friendly foreign government – Australia. As the special counsel rightly points out, the information did not come from Australian intelligence. It came from Australian diplomats, who could not assess its (dubious) intelligence value and who themselves did not believe Papadopoulos had an inside track on Russia’s intentions and capabilities. Moreover, the FBI could easily have interviewed Papadopoulos but opted not to. Then, when it ran a confidential informant at Papadopoulos only to have the meeting generate exculpatory information, the bureau ignored it.

IG Horowitz may have been right that the FBI’s opening of the investigation can be defended if one squints hard enough at the low DIOG standards. That hardly makes SC Durham wrong in concluding that the opening of Crossfire Hurricane on the flimsy predication grounds offered by the bureau was, under the circumstances, irresponsible.