Yes, There Was FBI Bias

National Review Online

Saturday, June 16, 2018

There is much to admire in Justice Department inspector general Michael Horowitz’s highly anticipated report on the FBI’s Clinton-emails investigation. Horowitz’s 568-page analysis is comprehensive, fact-intensive, and cautious to a fault.

It is also, nonetheless, an incomplete exercise — it omits half the story, the Russia investigation — and it flinches from following the facts to their logical conclusion. The media and the Left are spinning the report as a vindication of the FBI from the charge of bias, when the opposite is the truth.

The IG extensively takes on numerous issues related to the decision not to charge former secretary of state Hillary Clinton for, primarily, causing the retention and transmission of classified information on the non-secure “homebrew” server system through which she improperly and systematically conducted government business. (Dan McLaughlin usefully catalogues the topics Horowitz addresses here.) If there is a single theme that ties the sprawling report together, however, it is bias.

Or, as the report put it, “the question of bias.” It should not really be a question, because the evidence of anti-Trump bias on the part of the agents who steered the Clinton probe — which was run out of headquarters, highly unusual for a criminal investigation — is immense. In fact, the most hair-raising section of the report, an entire chapter, is devoted to communications among several FBI officials (not just the infamous duo of Peter Strzok and Lisa Page), which overflow with abhorrence for Trump (“loathsome,” “an idiot,” “awful,” “an enormous d**che,” “f**k Trump”) and his core supporters (“retarded,” “the crazies,” one could “smell” them). More alarmingly, the agents express a determination to stop Trump from becoming president (e.g., Strzok, on being asked if Trump would become president, says “No. No he’s not. We’ll stop it”; and on being assured that his election is highly unlikely, opines that “we can’t take that risk” and that the bureau needs “an insurance policy” against him).

Yet despite marshaling this damning proof of bias, Horowitz spends much of his report discounting it with respect to individual investigative decisions. His approach obscures more than it illuminates. The IG says it is not his burden to second-guess “discretionary” investigative decisions unless they were irrational. Thus, even if agents exhibited bias, he presumes that such decisions as granting immunity, declining to seek relevant evidence, or forgoing subpoenas are defensible as long as some government policy arguably supports them — even if other, better options were available. FBI director Christopher Wray has pounced on this, disingenuously arguing that the IG “did not find any evidence of political bias or improper considerations impacting the investigation.” It is a misleading comment: The IG found overwhelming evidence of bias and merely withheld judgment on whether it affected the investigation at key points.

Of course, what principally drove decisions in the Clinton-emails investigation (or “matter,” as Obama attorney general Loretta Lynch, like the Clinton campaign, insisted it be called) was the certainty that President Obama and his Justice Department were never going to permit Secretary Clinton to be charged with a crime, notwithstanding the abundant evidence. (Without a hint of irony, the report’s executive summary speaks of the supposed difficulty of proving Clinton’s knowledge of the hundreds of classified emails inevitably on her system, and then explains that the FBI abjured use of the grand jury because it would have required exposing prodigious amounts of classified information.) That is, regardless of whether individual decisions were driven by pro-Clinton bias, the predetermined outcome surely was. That’s why then-director James Comey was drafting his exoneration remarks months before critical evidence was obtained, and before Clinton and other key witnesses were interviewed.

A comparison between the handling of the Clinton emails and that of the Trump-Russia probes would almost certainly illustrate the influence of this bias, but that is exactly what the IG report lacks.

The report’s fans will say this is strictly a matter of timing: The IG’s Clinton-emails report has been 18 months in the making; it may take the IG even longer to complete the Trump-Russia review, and it would be unreasonable to delay any reckoning that long. But the fact that the IG’s inquiries into the two probes are on different tracks does not alter the more essential fact that the two are inextricably linked. They were conducted at the same time, by the same sets of top FBI agents and Justice Department officials, in the operating environment of the same event — the 2016 election.

They were, moreover, perceived as interrelated by the agents themselves. Strzok’s first reaction, upon hearing that Ted Cruz had withdrawn from the GOP race, leaving Trump as the de facto nominee, was that this meant the Clinton-emails probe had to be wrapped up (i.e., formally closed without charges). When the Trump-Russia investigation got rolling, Strzok commented that, compared to the Clinton-emails probe, this was the investigation that really “MATTERS” (emphasis in original). And here is Strzok the day after Robert Mueller was appointed special counsel, on the opportunity to join his investigation of now-president Trump:

For me, and this case, I personally have a sense of unfinished business. I unleashed it with MYE [Mid Year Exam — the FBI’s codeword for the Clinton Emails investigation]. Now I need to fix it and finish it.

Later in the same exchange he adds that this is a choice of whether he wants to be just another FBI assistant director or participate in an “investigation leading to impeachment.”

It’s only Horowitz’s extremely forgiving standard for judging investigative decisions that allows him to say that the impact of bias on the Clinton investigation is inconclusive. This is not to dismiss the usefulness of the IG’s report. It reaffirms that the president had ample legitimate grounds to dismiss Director Comey, who is shown to be insubordinate and deceptive, a self-absorbed law unto himself. Furthermore, the IG’s equivocation about the role of bias does not detract from his powerful condemnation of the disrepute rogue agents have brought on the bureau. Still, there is important work left to be done in fully accounting for the decisions of an FBI whose reputation won’t soon recover from its performance in 2016.