I know this is ancient history, but — I’m sorry — I just can’t let it go. When historians write the definitive, sordid histories of the 2016 election, the FBI, Hillary, emails, Russia, and Trump, there has to be a collection of chapters making the case that Hillary should have faced a jury of her peers.
The IG report on the Hillary email investigation contains the most thoughtful and thorough explanation of the FBI’s decision to recommend against prosecuting Hillary. At the risk of oversimplifying a long and complex discussion, the IG time and again noted that (among other things) the FBI focused on the apparent lack of intent to violate the law and the lack of a clear precedent for initiating a prosecution under similar facts. It also describes how the FBI wrestled with the definition of “gross negligence” — concluding that the term encompassed conduct “so gross as to almost suggest deliberate intention” or “something that falls just short of being willful.”
After reading the analysis, I just flat-out don’t buy that Hillary’s conduct — and her senior team’s conduct — didn’t meet that standard. The key reason for my skepticism is the nature of the classified information sent and received. Remember, as Comey outlined in his infamous July 5, 2016 statement, Hillary sent and received information that was classified at extraordinarily high levels…
If that annoys you, try wading through 568 pages of this stuff, particularly on the central issue of the investigators’ anti-Trump bias. The report acknowledges that contempt for Trump was pervasive among several of the top FBI and DOJ officials making decisions about the investigation. So this deep-seated bias must have affected the decision-making, right? Well, the report concludes, who really knows?
Not in so many words, of course. The trick here is the premise the IG establishes from the start: It’s not my job to draw firm conclusions about why things happened the way they did. In fact, it’s not even my job to determine whether investigative decisions were right or wrong. The cop-out is that we are dealing here with “discretionary” calls; therefore, the IG rationalizes, the investigators must be given very broad latitude. Consequently, the IG says his job is not to determine whether any particular decision was correct; just whether, on some otherworldly scale of reasonableness, the decision was defensible. And he makes that determination by looking at every decision in isolation.
But is that the way we evaluate decisions in the real world?
In every criminal trial, the defense lawyer tries to sow reasonable doubt by depicting every allegation, every factual transaction, as if it stood alone. In a drug case, if the defendant was photographed delivering a brown paper bag on Wednesday, the lawyer argues, “Well, we don’t have X-ray vision, how do we really know there was heroin in the bag?” The jurors are urged that when they consider what happened Wednesday, there is only Wednesday; they must put out of their minds that text from Tuesday, when the defendant told his girlfriend, “I always deliver the ‘product’ in paper bags.”
Fortunately, the judge ends up explaining to the jury that, down here on Planet Earth, common sense applies. In our everyday lives, we don’t look at related events in isolation; we view them in conjunction because they read on each other. Let’s say on Monday I confide to my friend that I can’t stand Bob, and on Tuesday I tell Bob I can’t join him for dinner because I have other plans. It may or may not be true that I have other plans, but common sense tells you my disdain for Bob has factored into the decision — even if I don’t announce that fact to Bob.
The professionally written and admirably researched IG report is in some sense a hall of mirrors, with all sorts of reflections that are contorted and warped, and into which all parties claim to see reality.
Often the euphemistic conclusions are not supported by the data produced. The only constant to Obama-era FBI and DOJ behavior is the universal assumption that Hillary Clinton would be president, and what might be assumed as improper or illegal conduct in the present, would likely in the future be excused or rewarded.
On the question of “bias,” the report exhaustively catalogues communications in which government investigators and attorneys systematically deprecate Trump, and the Trump voter, and in explicit terms boast about stopping him.
Apparently the IG can conclude that there is not actionable bias (although at times admitting he could not rule it out), because he did not find something such as “documentary” memos or texts outlining explicit behaviors, or some fantasy such as an admission that “the Trump voter is a POS who smells and therefore that fact is going to unprofessionally guide my investigations” — as if bias and prejudice are ever in professional life so clumsily documented in a formal, self-incriminating manner.
Comey’s FBI is the mirror image of Mueller’s special-counsel investigation: Both have the same objective to subvert Trump, but the means to achieve such a shared end are flipped, given the different circumstances.
On the one hand, Comey and his FBI ignore likely perjury and the misleading testimonies of Clinton staffers. For purposes of exoneration, they struggle to invent new linguistic interpretations of existing statutes. They ignore what is likely obstruction of justice of the attorney general modulating her investigations of the email scandal after meeting stealthily with Bill Clinton, the spouse of the suspect currently under investigation. They deliberately mask the fact that the president of the United States has communicated with his secretary of state over an illegal server and then has likely lied about his ignorance of such a fact. Comey himself admits that political considerations warp the course of his investigation of the email scandal.
In dire contrast, for Mueller, even perceived incomplete or inaccurate testimony is immediately leveraged as possible perjury for dirt on superiors. Supposed bribes and influence peddling are never reduced to mere “gifts.” When there is no evidence of collusion, every imaginable personal sin of the past is dredged up, again to flip a witness with threats of exorbitant legal costs and exposure to jail. The Andrew McCabe standard of conflict of interest (there is supposedly no technical law against one’s spouse receiving $700,000 in campaign help from a political machine allied to a candidate that one has just been investigating) does not apply to Flynn et al. but is redefined as “collusion.”
And in the final analysis, the FBI may have accidentally helped to defeat Hillary Clinton.
The IG report is complicated, telling a convoluted story of bad-faith bias, good-faith mistakes, and cascading challenges as each new error creates ever-larger dilemmas. But while the story is complex, the lesson is simple. There are reasons why agents and attorneys should go “by the book.” Apply the law to the facts, follow policies and procedures, and let the chips fall where they may. If you put your thumb on the scales, you’ll often unleash forces you can’t control. Just ask Strzok and Page. They aimed at Trump, but they hit Clinton.