We have been waiting for the Office of Inspector General (OIG) report from the Department of Justice (DOJ) for a long time. It may have an anodyne title — "A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election" — but the almost 600-page report will ripple through the body politic for months, probably years.
The scale of the report is incredibly broad. It ranges from calling fired FBI director James Comey ”insubordinate” in his handling of the investigation into Hillary Clinton’s illegal private email server, to providing details of senior FBI agents texting one another with promises that they would prevent Donald Trump from becoming president.
In a just world of transparent government and officials abiding by the law as much as average citizens, there would be consequences for those who abused their positions or behaved contrary to the oaths they took when they became law enforcement officers or civil servants.
Nevertheless, the report fails in the most important mission of the inspector general — to investigate “alleged violations of criminal and civil laws by DOJ employees.”
As its opening sentences state, the IG had been tasked to review the conduct of the FBI investigation into former Secretary of State Clinton’s private, unsecured server — the so-called Midyear Exam, or Midyear Investigation.
The inspector general finds that Comey breached DOJ protocols when he usurped the mandate of DOJ and the attorney general by unilaterally declaring that Clinton should not be charged since her illegal actions were not intended to damage U.S. interests: “Comey admitted that he concealed his intentions from the Department until the morning of his press conference on July 5, and instructed his staff to do the same, to make it impracticable for Department leadership to prevent him from delivering his statement. We found that it was extraordinary and insubordinate for Comey to do so, and we found none of his reasons to be a persuasive basis for deviating from well-established Department policies in a way intentionally designed to avoid supervision by Department leadership over his actions.”
This unequivocal statement makes it patently obvious that President Trump made a sound decision when he fired Comey.
While the chief executive can fire any member of the executive branch with or without cause, insubordination at the top of the FBI is cause enough — insubordination that clearly was not a one-off, given that Comey repeatedly refused to publicly confirm that the new president was not the subject of the investigation into so-called Russian collusion.
Nevertheless, the report must be deemed a failure. Its most newsworthy conclusion about the former director is really a conclusion about bureaucratic process; this is why the report so often uses the term “protocol” when describing Comey’s breaches.
But the inspector general isn’t maintained at great taxpayer expense to spend months and months investigating breaches in protocol or bureaucratic regulations; his mandate concerns “violations of criminal and civil law.” Shamefully, IG Michael Horowitz has nothing to say about the potential crime that the Midyear Investigation was meant to investigate. On the contrary, this new report very closely tracks the obfuscatory line used by Comey during his end-run around the DOJ to exonerate Clinton.
Specifically, the report states that by “the Spring of 2016, Comey and the Midyear team had determined that, absent an unexpected development, evidence to support a criminal prosecution of Clinton was lacking. Midyear team members told us that they based this assessment on a lack of evidence showing intent to place classified information on the server, or knowledge that the information was classified.”
By reiterating this reasoning, IG Horowitz commits the same mistake Comey committed in his infamous press conference when he excused Clinton for handling classified information on her unsecured private server. Like Comey, Horowitz unilaterally redefines the terms of the Espionage Act, specifically 18 U.S.C. § 793(f), which makes it a felony for any person “entrusted with … information relating to the national defense” to allow that information to be “removed from its proper place of custody” through “gross negligence.”
The law is clear; the authorities are not required to demonstrate intent. The stakes are so high with regard to our nation’s secrets that carelessness itself is a crime. More damaging, the IG’s findings support the conclusion that the Clinton team acted intentionally, stating that “the emails in question lacked proper classification markings.” This fact, that classified communications were intentionally stripped of classification markings, is damning. A government employee would only remove said markings if he knew that what he was doing was illegal and he was intentionally breaking the law on national security secrets.
Why would the inspector general — meant to be an independent body — undergird the narrative of the man he has accused of being insubordinate? As a former DOJ employee pointed out to me, there may be a very simple, disturbing explanation.
Inspector General Michael Horowitz has a long career in the law and government; in the 1990s he served as assistant U.S. attorney for the Southern District of New York, ending up as deputy chief of its criminal division. James Comey served in the same office for part of the same time; he even held the same position — deputy chief of the criminal division — before Horowitz.
Even if they were not close friends, the principle rule of law remains: Justice must not only be done, it must be seen as being done. This requires unimpeachable neutrality.
Despite the size of this report, many questions remain unanswered. For example, why is an FBI agent, Peter Strzok, who was in charge of the Clinton investigation and texting to his reported lover that “We’ll stop” Donald Trump from becoming president, still on the federal payroll?
Today’s report is just a start, since too many questions remain or have been handled in ways that support prior politically colored narratives which do not reflect the actual law.
These questions must be further investigated. But not by Michael Horowitz or anyone closely associated with those under investigation.
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