Tomorrow is the scheduled release of the Department of Justice inspector general’s report on the Federal Bureau of Investigation and DOJ’s handling of the Hillary Clinton investigation in the run-up to the 2016 election.
Last week, Inspector General (IG) Michael Horowitz announced in a letter to Senate Judiciary Chairman Charles Grassley that the DOJ’s Office of the Inspector General had nearly completed its “ordinary processes for the review and classifications of such reports” and was expected to provide the public the final report on June 14, 2018. Horowitz also committed to appearing before the Senate Judiciary Committee on June 18, 2018, to answer questions about the report.
When the report drops tomorrow, there will be much to process. So, here’s a primer of some key points of interest.
Will There Be Criminal Prosecution—and of Whom?
On the big picture, there will be two final take-aways of note from Horowitz’s report: first, whether the IG’s conclusions raise the possibility of criminal prosecution and, if so, of whom. The IG has already referred a criminal case against former FBI deputy director Andrew McCabe to DC’s U.S. attorney’s office. That was based on Horowitz’s findings that McCabe was responsible for leaks to the Wall Street Journal but lied about his role both to his former boss, FBI director James Comey, and to investigators.
While the IG report will not announce what criminal referrals, if any, have been made, the findings will provide insight, just as did the announcement that McCabe demonstrated a “lack of candor” in his conversations with Comey and investigators.
Second, Horowitz’s report will indicate whether there will be calls for a fresh investigation of Hillary Clinton for her use of a private server and reckless handling of classified material while U.S. secretary of state. IG Horowitz is not investigating Clinton, but the OIG’s focus on the FBI and DOJ’s handling of the Clinton investigation and report will likely reveal numerous deficiencies in the underlying probe. The deficiencies exposed will prompt calls for a new, unbiased, and thorough investigation of Clinton.
Democrats and the press will predictably push back, branding the demands a partisan ploy to take the focus off Special Counsel Robert Mueller’s investigation into whether the Trump campaign colluded with Russia. The details of the report will dictate which of these dueling narratives succeeds.
How Comey Handled the Hillary Clinton Investigation
Those details will include, among other things, a discussion of Comey’s conduct during the investigation. In announcing the OIG’s investigation on January 12, 2017, Horowitz identified five aspects of the internal watchdogs’ probe. The first was: “Allegations that Department or FBI policies or procedures were not followed in connection with, or in actions leading up to or related to, the FBI Director’s public announcement on July 5, 2016, and the Director’s letters to Congress on October 28 and November 6, 2016, and that certain underlying investigative decisions were based on improper considerations.”
The July 5, 2016, “public announcement” refers to Comey’s statement and press briefing that criticized Clinton and her staff for being “extremely careless in their handling of very sensitive, highly classified information,” but also announced the FBI was “expressing to Justice our view that no charges are appropriate in this case.”
The second aspect concerns Comey’s decision to send a letter on October 28, 2016, informing Congress that agents were reopening their probe into Clinton’s handling of classified material after discovering her emails on the laptop of the husband of Clinton’s top aide. In informing Congress of these details, Comey violated the advice of senior DOJ officials.
Then, on November 6, 2016, Comey informed Congress that the review of the additional information had been completed and the FBI remained convinced that charges were not appropriate. Among other things, expect the IG to discuss whether Comey’s statement and letters violated internal protocols or constituted insubordination.
Pay Attention to Comey’s Clinton Exoneration Memo
Further, in discussing “certain underlying investigative decisions were based on improper considerations,” look for the IG report to focus on Comey’s drafting of a memo exonerating Hillary Clinton while the probe was still ongoing and before the FBI had interviewed Hillary and two of her top aides. How the FBI handled those interviews will be another area likely discussed, given criticism already leveled at the FBI for allowing Hillary to be interviewed without swearing an oath and the investigators’ decision to grant Hillary’s aides immunity.
The report will also likely delve into the process by which changes were made to the draft memo, which originally described Clinton’s actions as “grossly negligent” before the FBI toned the charges down to “extremely careless.” The “grossly negligent” label coincided with the statutory requirement for criminal intent, likely explaining the modification. The question is whether Horowitz uncovered any evidence that those supposedly investigating Clinton altered the memo for that reason.
Conflicts of Interest for Andrew McCabe
The second aspect of the OIG’s investigation focused on “[a]llegations that the FBI Deputy Director should have been recused from participating in certain investigative matters.” While the earlier IG report addressed McCabe’s leaking and lies about it, this portion of the report will address McCabe’s participation in the Clinton investigation given the conflict of interest stemming from his wife’s unsuccessful senatorial run in Virginia.
Documents obtained in a Freedom of Information Act request revealed that “[g]roups aligned with Clinton and McAuliffe donated $675,000 to Jill McCabe’s Senate campaign which amounted to nearly 40 percent of the campaign’s total funds.” In addition to discussing whether McCabe should have recused from the investigation, Horowitz’s report will likely discuss the FBI’s ethics office decision that recusal was not required, and the FBI’s creation of “talking points” to counter complaints about McCabe’s participation in the Clinton probe.
Those Aren’t the Only Conflicts
The third component of the OIG’s investigation looked at “[a]llegations that the Department’s Assistant Attorney General for Legislative Affairs improperly disclosed non-public information to the Clinton campaign and/or should have been recused from participating in certain matters.” This portion of Horowitz’s report will focus on Peter Kadzik’s role in the investigation and whether he “tipped off Clinton presidential campaign chairman John Podesta about two issues: an upcoming hearing where a Justice Department official would be asked about the Clinton emails, and the timing of the release of some Clinton emails.”
Kadzik, who has since left his role as the DOJ’s assistant attorney general, “previously worked for Podesta as an attorney.”
“Allegations that Department and FBI employees improperly disclosed non-public information,” was the fourth area the OIG investigated, and the report will detail any additional leaks discovered.
Finally, the OIG investigated “[a]llegations that decisions regarding the timing of the FBI’s release of certain Freedom of Information Act (FOIA) documents on October 30 and November 1, 2016, and the use of a Twitter account to publicize same, were influenced by improper considerations.” This final aspect of the investigation probed the FBI’s use of its Twitter account and release of tweets on October 30 and November 1, that, respectively, disclosed information concerning Donald Trump’s father and Bill Clinton’s pardon of Marc Rich.
At the time, the FBI maintained the tweets complied with internal procedures for the release of FOIA information, even though the account had been dormant for more than one year. While it is unlikely that these final two issues will garner significant attention, these aspects of the investigation made relevant internal communications of FBI personnel, opening the possibility that Horowitz’s team discovered more messages exposing the political biases of those investigating Clinton—and now President Trump.
While this IG report will not address the DOJ and FBI’s abuse of the Foreign Intelligence Surveillance Act to obtain a surveillance order against former Trump campaign advisor Carter Page, or the government’s reliance on Christopher Steele’s debunked “dossier” in its FISA court application—that is a matter of a separate OIG investigation—tomorrow’s findings will likely provide additional insights into Spygate, given the overlap in the players. After all, it was IG Horowitz who discovered the anti-Trump text messages between lovers Peter Strzok and Lisa Page.
How much more is there? Tomorrow we will have a better idea.