The Real Lesson of the Inspector General's Report
You missed it. But that's all right: everyone else missed it, too.
Michael Horowitz is the Department of Justice's Inspector General. He testified on June 18th before the Senate Judiciary Committee about his report concerning the Hillary Clinton national security breach investigation. The revelation came to light during questioning by Senator John Kennedy. (@7:36)
Horowitz testified that “most” of the investigative decisions in that investigation were made not by the FBI but by prosecutors within the Department of Justice.
One might be tempted to conclude that much of the criticism of the FBI for its decisions in the aforesaid Clinton investigation would have to be discounted or re-examined. Perhaps. But that is not the most important conclusion.
For whatever reason, it is clear from the report that the structure of the FBI/DOJ's Clinton investigation was all off: the FBI was reduced to providing a set of runners (perhaps willing and even avid, because of their demonstrated bias, runners, but runners just the same) for DOJ attorneys.
Now, in our system of justice, this is not unlawful. It is “merely” highly unusual.
Skipping over, for a bit, reflections on the incidence of the DOJ calling the shots in investigations, what should be stressed is that if there is a need for an FBI, and not for just a set of runners and errand boys for geekish DOJ clerks, perhaps it might be logical to posit that if so, then the FBI should actually handle its investigations itself.
Now, simply, it is very rare for criminal investigations to be handled directly from FBIHQ. But it may have been unprecedented in the history of the FBI to have run the Hillary Clinton investigation, an intelligence/espionage investigation, out of FBIHQ.
It probably behooves us to pause here in order to remember that the FBI is organized in what to many may appear to be an upside-down fashion. Ordinarily cases are either assigned to or are developed by “case” agents. Case agents work out of offices scattered across the country.
The reader may find this remarkable, but it is the case agents who make investigative decisions, although ostensibly they are on the lowest rung of the organizational chart. For this reason, many agents have fought to stay at the case-agent level. One cannot be “prince of the city” sitting in an office.
Of course, if a particular investigative step is of a sensitive nature, prior to taking it authority is secured from the requisite supervisory level, which is often at the level of FBIHQ. There is nothing wrong with that, in principle. No one – no case agent – wants to embarrass the Bureau. If there is a “conformity bias” in the field office it is to take the case wherever the facts lead, and not in an overzealous fashion.
Thus, in the ordinary course, it is only once an investigation is complete (!) that the work product is given to the DOJ. Decisions as to discretionary investigative steps are taken in the relatively insulated environment of the field office; they are taken by case agents who are not really beholden to anyone, as they have no need or intention to promote themselves.
All of this militates against bias.
The reverse is true concerning the Clinton espionage investigation. There the structure of the investigation militated towards bias. (Indeed, the reins of the investigation were handed over to the DOJ. If there had been real leadership at the Bureau, this would never have happened.)
For this reason, in order to lessen the chance for such shenanigans to take place, the president, or at the least the FBI director, should ensure that no investigations be conducted out of headquarters. Ever. (That would go for Robert Mueller's “special counsel” probe, which is an FBI/DOJ to itself.)
There is yet another consideration. The FBI is used to conducting intelligence investigations. It has considerable expertise in doing so. An agent doing intelligence work is an intelligence officer; an IO in Bureau parlance. Such people develop not only expertise but also a sense of the importance of the subject matter (after all, “national security” concerns the very security – and existence – of the nation), and yet the same sense does not appear to be manifested, judging from recent events and the IG's report, in the DOJ, despite the latter's having a division dedicated to national security.
For instance, it is almost never stated that one of the great blows that our national security was dealt by Mrs. Clinton was that to our reputation for trustworthiness and professionalism. Consider a CIA officer or FBI agent dealing with a potential highly placed foreign intelligence officer. In order to betray their own country, the foreign intelligence officer has to believe that the U.S. government will safeguard their identity. Yet now visions of Mrs. Clinton's homebrew server (and, because of her, Anthony Weiner's laptop computer) must flash before that foreign intelligence officer's eyes as he considers making a leap of faith. Not to mention the psychological blow to our CIA and FBI intelligence officers: they too have to believe in the integrity of the system.
When one takes considerations such as this away from the table, one is left with what appears the case in the IG report: either feigned or no real understanding of the gravity of the offense on the part of the investigators and prosecutors.
But there is more to be said regarding FBI/DOJ bias in the IG's report. Former judge Jeanine Pirro castigated IG Horowitz on her Fox News show. She said in essence that in a murder case one proves the state of mind of the perpetrator by indirect evidence, and that therefore the IG could not reasonably find, as he did, that no investigative decisions were made because of bias. Especially because the report is full of evidence of a biased state of mind.
Mrs. Pirro forgets that in a murder trial there is a body. It is clear, obviously, that a crime has been committed.
But there is no crime as such committed by the players in the IG report. As the IG concluded, every investigative decision was made upon an arguably reasonable foundation.
This is not at all to say that the investigation was properly handled. But what we are dealing with is prosecutorial and investigative under-zealousness in regard to Mrs. Clinton and rabid jihadic over-zealousness with regard to Mr. Trump. Neither of these are crimes; neither of these are, ordinarily, “prosecutable” ethical violations.
In this regard we should remember that what Andrew McCabe was alleged to have done was pretty darn bad: he leaked information to the press. But that's not a crime, and the criminal referral made by the IG in McCabe's case is on the basis of his allegedly lying to the FBI, a violation of 18 USC 1001.
That is why the IG did not pass judgment upon the players in the Clinton espionage investigation. The IG is not the tool for this. We may desperately wish it to be, but in truth, it is the height of asininity to insist that a screwdriver will function the same as a hammer.
Indeed, we cannot expect the system to police itself on using a paradigm of rules-violations in the situation we are dealing with. (It would be much easier were that the case.) That is because often the problem is that discretion is misused, which is not something that can be policed by the system itself.
This should be obvious: after all, the IG said the DOJ/FBI followed the rules, but were biased. We might do well to recall that this is the general case with the Deep State and has been for some time; it is no news that the Deep State is biased against one of the two main political parties.
The historian Victor Davis Hanson in a recent article describes the same phenomena and goes on to state he believes that “For all the investigations and IG reports, for all the revelations of scandals and wrongdoing, there will probably in the end be little consequence.”
Hanson may be correct.
But he need not be.
We have a unitary executive (at para.13). If the president can act to level the playing field and ensure fairness, then the matter is salvageable. If not, the outlook is grim.
Tadas Klimas is a former FBI agent, awarded the National Intelligence Medal of Achievement (NIMA).
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