By Andrew C. McCarthy
Thursday, January 12, 2017
The Justice Department’s inspector general has announced
that his office will conduct a review that will focus principally on FBI
director James Comey’s public statements regarding the Clinton e-mails
investigation during the 2016 campaign.
These were the three highly unusual announcements
describing the status of the investigation in which no charges were filed: (1)
the detailed presentation on July 5 of: the evidence uncovered against Hillary
Clinton, a legal analysis of the applicable criminal statute, Comey’s determination
that an indictment was not warranted, and his opinion that no reasonable
prosecutor could disagree with his assessment; (2) the October 28 letter to
Congress indicating that the Clinton e-mails case was being reopened owing to
newly discovered evidence (derived from the separate investigation of disgraced
former representative Anthony Weiner [D., N.Y.], and specifically from a
computer shared by Weiner and his estranged wife, Clinton aide Huma Abedin);
and, finally, (3) the announcement on November 6 – virtually the eve of the
election – reaffirming Comey’s decision (announced July 5) not to seek an
indictment.
It is undoubtedly appropriate for Michael Horowitz, DOJ’s
inspector general, to consider whether these actions departed from
law-enforcement protocols – as I have previously explained. But it is worth
noting what the IG will not be
reviewing: the Justice Department’s conduct.
The IG’s press release makes no mention of the Justice
Department’s decision not to open a grand-jury investigation, despite
significant concrete evidence of criminal wrongdoing – the decision that
deprived the FBI of the use of subpoenas to compel the production of evidence.
Neither will the IG be reviewing the multiple irregular immunity agreements
granted by the Justice Department in a case in which no criminal charges were
filed, including agreements that reportedly called for the destruction of
evidence (laptop computers of top Clinton aides) after a strangely limited
examination of their potentially incriminating contents.
There will similarly be no inquiry into why the Justice
Department allowed subjects of the investigation (who had been granted immunity
from prosecution) to appear as lawyers for the main subject of the
investigation – despite ethical and statutory prohibitions on such conduct.
Nor, evidently, will the IG be probing why the attorney general furtively met
with the spouse of the main subject of the investigation – the spouse who just
happens to be the president who launched the attorney general to national
prominence by appointing her as a district U.S. attorney in the Nineties – on
an airport tarmac just days before Mrs. Clinton submitted to a perfunctory FBI
interview, after which came Comey’s announcement that charges would not be
filed.
According to the press release, the IG will be looking at
other matters related to the Clinton investigation. These include: whether the
FBI’s deputy director should have been recused because his wife had been
sponsored in a run for public office by Clinton insider Terry McAuliffe;
whether FBI and DOJ officials improperly disclosed non-public information; and
whether the FBI’s response to a Freedom of Information Act request – which
included information about President Clinton’s infamous Marc Rich pardon – was
timed (the week before the election) to damage Mrs. Clinton’s campaign.
Nevertheless, it appears that the decisions that actually
tanked the Clinton investigation will not be scrutinized. The IG would likely
say that those matters are related to the exercise of prosecutorial authority,
and are thus best left to Justice’s Office of Professional Responsibility. But
of course, OPR reports directly to the attorney general. Only the IG has
authority to investigate independent of DOJ supervision.
Horowitz, a very fine lawyer and prosecutor who (like Jim
Comey and yours truly) was an assistant U.S. attorney for the Southern District
of New York for several years, was appointed Justice’s IG by President Obama in
2012. I suspect the Trump administration will want its own appointee. In a show
of bipartisanship in 2001, President Bush retained Glenn Fine, the IG President
Clinton had appointed shortly before leaving office; thereafter, Fine
aggressively investigated Bush’s Justice Department . . . and was retained by
Obama until retiring in late 2010 – ultimately to be replaced by Horowitz.
It is unlikely that Trump will want to repeat that
history. Look for the Justice Department to have its first Republican-appointed
IG in decades. Assuming that happens, we will have to see whether the review
announced today proceeds as planned and whether, if it does, its scope is
altered.
What we do know is that there has been a stark difference
between the Obama Justice Department’s kid-gloves treatment of FBI
investigations touching on the Democratic presidential nominee, and the
aggressive approach (including FISA warrants, as I discussed in Wednesday’s
column) that DOJ took on investigations touching on the Republican presidential
nominee.
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