The reputation of the Federal Bureau of Investigation took another pummeling in June, when the Department of Justice Inspector General released a damning report on the FBI’s investigation of Hillary Clinton’s squirrely email server. Americans learned that the FBI had done backflips to exonerate Clinton and that a top FBI official had openly promised to “stop” Donald Trump from becoming president. The IG report proves that it is time for a sweeping independent investigation of the FBI’s abuses of Americans’ rights and liberties.
The FBI’s investigation of Clinton was spurred by her decision to set up a private server to handle her email during her four years as Secretary of State. The server in a bathroom of her Chappaqua, New York, mansion was insecure and exposed emails with classified information to detection by foreign sources and others.
Clinton effectively exempted herself from the federal Freedom of Information Act (FOIA). The State Department simply ignored 17 pre-2014 FOIA requests for Clinton’s emails. State delayed for more than five years answering a simple request from the Associated Press for Clinton’s schedules and meetings. The agency insisted that it would require 75 years to disclose emails of Hillary’s top aides. A federal judge and the agency’s Inspector General slammed the FOIA stonewalling and foot-dragging.
Clinton’s private email server was not publicly disclosed until she received a congressional subpoena in 2015. A few months later, the FBI Counterintelligence Division opened a criminal investigation examining the “potential unauthorized storage of classified information on an unauthorized system,” as one agent declared. The IG report recaps how Attorney General Loretta Lynch swayed FBI Director James Comey to mislead the public by denying that a criminal investigation involving Hillary Clinton had commenced; instead, it was referred to simply as a “matter.”
The “investigation” (1)
The IG report gives the impression that the FBI treated Hillary Clinton and her coterie like royalty — or at least like personages deserving endless deference. When Bleachbit software or hammers were used to destroy email evidence under congressional subpoena, the FBI treated it as a harmless error. The IG report “questioned whether the use of a subpoena or search warrant might have encouraged Clinton, her lawyers … or others to search harder for the missing devices [containing email], or ensured that they were being honest that they could not find them.” Instead, FBI agents worked on “rapport building” with Clinton aides.
The report noted, “We found [Paul Combetta’s] actions in deleting Clinton’s emails in violation of a Congressional subpoena and preservation order and then lying about it to the FBI to be particularly serious. We asked the prosecutors why they chose to grant him immunity instead of charging him with obstruction of justice, in violation of 18 U.S.C. § 1505, or making false statements, in violation of 18 U.S.C. § 1001…. [They] believed prosecuting Combetta would not ‘serve a federal interest.’” This was one of many twists in the investigation vivifying that truth was not a “federal interest.”
FBI investigators even shrugged off brazen deceit. An unnamed FBI agent on the case (identified in the report as “Agent 1”) responded to a fellow FBI agent who asked how an interview went with a witness who worked with the Clintons at their Chappaqua residence: “Awesome. Lied his ass off. Went from never inside the scif [sensitive compartmented information facility] at res [residence], to looked in when it was being constructed, to removed the trash twice, to troubleshot the secure fax with HRC a couple times, to everytime there was a secure fax i did it with HRC. Ridic.” When his colleague replied that it “would be funny if he was the only guy charged n this deal,” Agent 1 replied, “aint no one gonna do sh–” with respect to filing charges.
A top FBI agent groused that, from the beginning, the Clinton investigation showed “no control and horrible decisions and chaos on the most meaningless thing I’ve ever done with people acting like f*** 9/11.” Four months later, he groused about “alot of work and bullsh– for a political exercise.” He later messaged colleagues about “a sh–ty task, in a sh–ty environment. To look for something conjured in a place where you cant find it, for a case that doesnt matter and is predestined…. DOJ comes in there every once in awhile and takes a wishy-washy, political, cowardice stance.”
Rep. Trey Gowdy (R-S.C.) complained that FBI investigators treated Clinton and her associates far more leniently than they have Trump campaign officials: “Voluntariness and consent in the former were replaced with search warrants, subpoenas, and other compulsory processes in the latter. Many of the investigators and supervisors were the same in both investigations but the investigatory tactics were not.”
The FBI apparently failed to make any audio or video recordings of its interviews with Clinton aides and staffers. Perhaps the most frequent phrase in the IG report is “According to the FD-302 …” This refers to the memo an FBI agent writes after interviewing targets or witnesses in an investigation. Relying on Form 302s (instead of recording interviews) maximizes the discretion of FBI officials, allowing them to frame issues or create a narrative or buttress charges of lying to a federal agent. FBI officials have been accused of using 302s to fabricate evidence of criminal wrongdoing. (The FBI’s refusal to tape-record interviews or confessions is increasingly harming its credibility with juries, partly explaining the sharp fall in the number of FBI referrals that produce convictions.)
The “investigation” (2)
The FBI waited until the end of the investigation to interview Clinton and had decided to absolve her “absent a confession from Clinton,” the IG report noted. There was no recording and no transcript; instead, a 302 report allowed FBI Director James Comey to proceed with the pre-ordained “not guilty” finding. Clinton had received numerous classified emails (some of which were marked with a “C”) on her private email server. The IG report notes, “According to the FD-302 from Clinton’s interview, Clinton told the FBI that she did not know what the ‘(C)’ meant and ‘speculated it was a reference to paragraphs ranked in alphabetical order.’”
The IG noted, “Witnesses told us, and contemporaneous emails show, that the FBI and Department officials who attended Clinton’s interview found that her claim that she did not understand the significance of the ‘(C)’ marking strained credulity. [FBI] Agent 1 stated, ‘I filed that in the bucket of hard to impossible to believe.’” Comey told IG investigators that “by her demeanor, she was credible and open and all that kind of stuff.” But a video recording of the showdown would have been invaluable to Americans who doubted Clinton and the FBI. One of the FBI agents who interviewed Clinton texted to a colleague afterwards that he was “done interviewing the President,” as if the FBI assumed her election was a foregone conclusion. Prior to the interview, Lisa Page, a top FBI attorney texted her colleagues, “She might be our next president. The last thing you need [is] us going in there loaded for bear.”
The IG report deals briefly with a kerfuffle over the FOIA release of Clinton Foundation documents a week before the 2016 election. Regrettably, the IG overlooked the FBI’s horrendous record on FOIA compliance; even former FBI Deputy Director Andrew McCabe now bewails that the FBI is a perpetual FOIA violator. A federal judge slammed the agency for claiming it would require 17 years to fulfill a FOIA request on surveillance of anti-war activists in the 1960s. The FBI also makes ludicrous redactions to FOIA releases — such as deleting the names of Clark Kent and Lois Lane from a theatrical adaptation of Superman because disclosing them would “constitute a clearly unwarranted invasion of personal privacy.”
Anti-Trump texts spurred the IG to refer five FBI employees to the FBI for possible disciplinary penalties. “We’ll stop” Donald Trump from becoming president, lead FBI investigator Peter Strzok texted his mistress/girlfriend, FBI lawyer Lisa Page, in August 2016. One FBI agent labeled Trump supporters as “retarded” and declared “I’m with her” [Hillary Clinton]. Another FBI employee texted that “Trump’s supporters are all poor to middle class, uneducated, lazy POS.” One FBI lawyer texted that he was “devastated” by Trump’s election and declared “Viva la Resistance!” and “I never really liked the Republic anyway.” The same person was the “primary FBI attorney assigned to [the Russian election-interference] investigation beginning in early 2017,” the IG noted.
A real investigation
The IG report shows how unjustified secrecy and arbitrary power helped ravage the credibility of Hillary Clinton’s presidential campaign and the FBI, and it spurred predictable demands that the FBI must behave in a strictly nonpartisan manner. That is an ideal that is likely to be realized nowhere except in newspaper editorials. The sweeping discretionary power the FBI captures from enforcing thousands of federal criminal laws is destined to be abused.
The first step to reining in the FBI is to open the agency’s files. Oversight is often a mirage, thanks to FBI spurning of congressional subpoenas and other information demands. Federal judges have been riled by FBI false testimony and withholding of evidence in major court cases ranging from Ruby Ridge and Waco, to the Orlando Pulse massacre and the Bundy Ranch showdown. The FBI has perennially exempted itself from the Freedom of Information Act.
It has been more than 40 years since a Senate committee (headed by Frank Church) had the gumption and the sway to reveal the stunning details and breadth of FBI misconduct. It is time for another independent investigation with the courage and the clout to compel full disclosure from the most powerful domestic government agency. Investigators should receive all the crowbars they need to pry open FBI records.
Democracy is a mirage when governments blindfold citizens. Fifty-four years ago, the Supreme Court declared that “one person, one vote” is the law of the land. But, as the IG report is likely to show, the new de facto standard for American elections is “one agency, one veto” — at least regarding bureaucrats’ right to pull strings to favor a candidate.
The Founding Fathers never intended a secret police force to be an independent fourth branch of the federal government. As James Madison warned in 1788, “Wherever the real power in a Government lies, there is the danger of oppression.” And as Secretary of State Hillary Clinton wisely warned in 2012, “Lack of transparency eats away like a cancer at the trust people should have in their government.”
This article was originally published in the September 2018 edition of Future of Freedom.
