Departing Investigators Highlight Flaws in FBI, DOJ Actions, Request Second Special Counsel

January 1, 2019 Updated: January 1, 2019

Rep. Bob Goodlatte (R-Va.), chairman of the House Judiciary Committee, and Rep. Trey Gowdy (R-S.C.), chairman of the House Oversight and Government Reform Committee, are retiring effective Jan. 3, when the new Congress convenes.

Gowdy has been personally entrusted by Rep. Devin Nunes (R-Calif.), the chairman of the House Intelligence Committee, with handling all reviews of classified documents and information, while Goodlatte has been one of the most active members of Congress in uncovering the Spygate scandal, working in concert with Nunes’s investigations.

During 2018, Goodlatte and Gowdy, and their respective committees, formed a joint investigation into decisions made—and not made—by the FBI and the Department of Justice (DOJ) in 2016 and beyond.

During their joint investigation, their committees “reviewed thousands of documents and conducted transcribed interviews of investigative and prosecutorial decision-makers at the FBI, DOJ and elsewhere.”

In March 2017, they called upon then-Attorney General Jeff Sessions to appoint a second special counsel to review actions taken by the FBI and DOJ throughout 2016 and 2017 and to investigate potential FISA abuses. Although that call wasn’t heeded, it did lead Sessions to appoint U.S. Attorney John Huber as an outside prosecutor, working alongside DOJ Inspector General Michael Horowitz in his multiple investigations.

Specifically stated by Gowdy and Goodlatte in a letter to officials in the Senate and DOJ—and in contrast to some reporting in the media—Huber has been active in his official capacity. As they note, “It is our understanding U.S. Attorney Huber has been engaged in this review since his appointment.”

In the letter to Senate Majority Leader Mitch McConnell (R-Ky.), acting Attorney General Matthew Whitaker, and IG Horowitz, the two put forth some of their concerns.

They began by noting that the FBI and DOJ had then-presidential candidate Hillary Clinton under investigation for potential criminal misconduct and “within a month of concluding that investigation, launched a counterintelligence investigation” into the campaign of her opponent, Donald Trump.

In their letter, they questioned why the existence of the Clinton investigation was made public while the investigation into the Trump campaign—conducted by agents with demonstrable bias—was not.

‘Intent’ Not Pursued

Regarding the Clinton email investigation, Gowdy and Goodlatte noted that the FBI and DOJ established a higher level of scienter—a legal term for intent or knowledge of wrongdoing—into the “gross negligence” statute. Notably, the FBI and DOJ failed to even attempt to identify what intent may have existed on the part of Clinton during their investigative process.

That matter of intent was discussed by former FBI Director James Comey in an April interview with ABC News’ George Stephanopoulos.

Stephanopoulos: “You also write that you knew from the start that the Clinton case was unlikely to be prosecuted. Some of your critics, including President Trump, think that you brought a prejudgment to the case?”

Comey: “What the FBI brought to the case—folks forget I didn’t actually do this investigation, I supervised an organization that did it—is a knowledge about how these cases are handled in the counterespionage world. That’s the world where mishandling of classified information is investigated. And so, we have a 50-year history of knowing what will the Department of Justice prosecute.

“They’ll prosecute cases like [former CIA Director] David Petraeus’s. But they’re very unlikely to prosecute a case unless you can show the person, like Petraeus, clearly knew they were doing something they shouldn’t do. There’s evidence of obstruction of justice or disloyalty to the United States, spy—indications.

“But without those, sloppiness—even extreme sloppiness—is handled through administrative discipline. Somebody isn’t prosecuted. And I’ve gone through 50 years of cases. I don’t know of a case where anyone has ever been prosecuted for just being careless, even extremely careless. And so, when the case was open, we know that history.

“And so the investigators knew that, unless they found something that was a smoking gun, where someone told Secretary Clinton, “You know, you shouldn’t be doing this,” or where she acknowledged it or where somehow there’s an indication of her obstructing justice, the case was unlikely to be prosecuted.

“As investigators, our question is, when they did that, are they trying to obstruct justice in some ways? And we could never establish, develop the evidence—evidence is a different thing from what people say. Evidence that anybody who did that did it with a corrupt intent. And most importantly, any indication that Secretary Clinton knew that was happening and knew that it was an effort to obstruct justice.”

The issue being highlighted by Gowdy and Goodlatte is that the matter of intent was never properly investigated by the FBI, nor was there any evidence that the FBI pursued this line of questioning with witnesses. Additionally, the FBI failed to require Clinton to address these questions of intent during her interview.

As the two note, “the manner in which this investigation was conducted ensures we may never know the answers to these seminal questions.”

Comey’s Surprise Exoneration Statement

With regard to Comey’s decision to publicly recommend no charges against Clinton—a decision normally reserved for the DOJ—Gowdy and Goodlatte acknowledge Comey’s concern regarding the lack of objectivity of the DOJ, but concurrently note that the route he chose didn’t remedy the issue. They also found no evidence to support Comey’s contention that he seriously considered calling for a special counsel investigation of the Clinton email matter.

Interestingly, the congressmen point out that FBI General Counsel James Baker, the senior most legal official within the FBI, initially “did believe the case could be made from an evidentiary standpoint.” They also point out that there wasn’t unanimous agreement within the FBI on the Clinton matter, as “multiple witnesses testified to the Committee” to that effect.

Furthermore, Gowdy and Goodlatte questioned the decision by Comey to draft what amounted to an exoneration letter of Clinton “months before all the witnesses were interviewed.” Equally alarming is that previous drafts of the memo were edited, but not fully provided to the House committee.

Foreign Actors Edited Out

The two note that there is evidence from the documents provided to suggest that “foreign actors obtained access to some of Clinton’s emails—including at least one email classified ‘Secret.’” Additionally, evidence exists to suggest that foreign actors also gained access to the email accounts of multiple Clinton staffers.

This information, which was apparently included and then edited out of Comey’s exoneration memo, “goes directly to elements of the offense Comey concluded were missing from the case.”

Obama’s, Clinton’s Use of Private Emails

The issues surrounding the use of a private email address for government business extended beyond Clinton. A decision was made by the FBI to hide the fact that emails sent between President Barack Obama and Clinton passed through Clinton’s private email server. In Comey’s exoneration statement, the words “the President” were replaced with “senior government official,” and any reference to the fact that the two communicated using non-governmental accounts was simply removed.

Bias in Privileges Granted in Interviews

The process followed in interviewing Clinton lies in stark contrast to the process followed in interviewing President Donald Trump’s then-national security adviser Lt. Gen. Michael Flynn, who was essentially waylaid by FBI agents Peter Strzok and Joe Pientka at the order of Deputy FBI Director Andrew McCabe, who personally discouraged Flynn from having an attorney present.

Clinton’s defense counsel was alerted—by the FBI—to questions that would be asked to witnesses in advance of their questioning. Additionally, fact witnesses, who also were attorneys, were allowed to be present during Clinton’s FBI interview.

The FBI granted immunity to a total of five Clinton staff members and agreed to destroy the evidence (laptops) when finished. These aides included Cheryl Mills, Clinton’s former chief of staff and personal attorney, and Heather Samuelson, an attorney and former senior adviser. Both women were present as attorneys for Clinton during her FBI interview, despite having been interviewed as witnesses and offered immunity.

As Gowdy and Goodlatte note, this treatment was in stark contrast to the case of Flynn, where the “FBI discouraged Michael Flynn from having an attorney present and broke from protocol in not notifying the DOJ or White House Counsel.”

Institutional Bias at DOJ, FBI

Another concern raised in the letter was the level of institutional bias that existed within the FBI and DOJ, as well as its ongoing lack of discovery.

FBI agent Strzok participated in the Clinton investigation, interviewed Clinton, initiated the FBI’s Russia investigation, promised to “stop Trump from becoming President,” discussed an “insurance policy” in the event that Trump won, worked on the FISA application to surveil Trump campaign adviser Carter Page, and personally interviewed Flynn.

As they note in their letter: “It is not the discovery of bias that is destructive to fairness, it is the existence of it. How an agent with this level of bias could have been centrally involved at each stage of three major investigations needs to be fully understood so it can be fully avoided and mitigated.”

In the evolving case of the laptop of former Rep. Anthony Weiner (D-N.Y.), Goodlatte and Gowdy note the delay in basic evaluation of its contents that led to Comey’s delay in notifying Congress to the existence of thousands of Clinton emails on the device, thereby “placing that notice even closer to the date of the election.”

This in turn, “led to a belief among some Americans that the investigation and its aftermath cost her the November 2016 general election.”

McCabe–Rosenstein Feud

The committee noted that Baker relayed to House investigators second-hand comments allegedly made by Deputy Attorney General Rod Rosenstein to then-acting FBI Director Andrew McCabe and his legal counsel, Lisa Page, about “wearing a recording or transmitting device during conversations with the President.”

Goodlatte and Gowdy, who attempted to arrange an interview with Rosenstein that ultimately didn’t occur, note that Rosenstein’s denial was forceful and “questions deserve to be asked and the DAG deserves the chance to respond.”

The alleged comments by Rosenstein occurred, according to a Washington Post article, at a meeting where McCabe was “pushing for the Justice Department to open an investigation into the president.”

An unidentified participant at the meeting framed the conversation somewhat differently, telling The Washington Post that Rosenstein responded sarcastically to McCabe, saying, “What do you want to do, Andy, wire the president?”

Notably, Baker, who was part of McCabe’s group, was communicating with Mother Jones journalist David Corn and has admitted to receiving a copy of the Steele dossier from Corn in the days following the election. Baker has also admitted to meeting secretly with Perkins Coie lawyer Michael Sussmann, who provided Baker with documents and electronic media related to alleged Russian meddling in the election. Perkins Coie was the law firm for the Democratic National Committee and the Hillary Clinton campaign that hired Fusion GPS to produce the dossier on Trump on their behalf.

McCabe is currently sitting before a grand jury; Rosenstein remains in his position as deputy attorney general.

Media Leaks

The differences in treatment between Clinton and Trump on a basic level also are noted within the letter—specifically differences during defensive briefings provided to Clinton versus Trump.

Ongoing leaks to the media from within the FBI and DOJ jeopardized the basic fairness of ongoing investigations, and Gowdy and Goodlatte questioned the ongoing level of communication between the media and members of the FBI and DOJ. This also wasn’t the first indication of unauthorized leaking by the FBI.

A June report by the DOJ inspector general, examining various actions by the FBI and the DOJ in advance of the 2016 election, noted the following:

“We identified numerous FBI employees, at all levels of the organization and with no official reason to be in contact with the media, who were nevertheless in frequent contact with reporters.”

The FBI employees, according to the report, received benefits from reporters, including tickets to sporting events, golf outings, drinks and meals, and admittance to nonpublic social events.

“We have profound concerns about the volume and extent of unauthorized media contacts by FBI personnel that we have uncovered during our review,” the IG report said.

As Gowdy and Goodlatte note, “It should be better understood what contact the FBI or DOJ had with the media and whether those contacts were authorized by the leaders of the Bureau and the Department.”

The Steele Dossier

Finally, the two congressmen touched on the topic of the Steele dossier, without actually calling it by name.

They note their ongoing concern “with how derogatory information about candidate Trump was accessed by the FBI, the sourcing of such information, the vetting of such information and government reliance on it in court pleadings.” Of particular concern was the impact on the FISA process and the lack of notification to the FISA court about sourcing issues and biased information.

Hampered Investigations and the Special Counsel

Gowdy and Goodlatte note that the House investigations were hampered by “institutional protectionism on the part of the FBI and DOJ,” including delays in production of documents and witnesses in a timely fashion. Also noted was the ongoing lack of document declassification.

In relation to the special counsel, commentary from the letter is both unexpected and intriguing. Gowdy and Goodlatte note there’s been no effort to impair or “discredit” the work of the special counsel. They also wrote in their letter that “whatever product is produced by the Special Counsel must be trusted by Americans and that requires asking tough questions about investigative techniques both employed and not employed.”

Gowdy and Goodlatte both acknowledge that the DOJ inspector general has launched additional investigations stemming from “questionable conduct and decision-making discovered during its initial investigation,” and the investigation into FISA abuses is specifically noted. They also noted that a restoration of trust in the “venerable institutions like the Department of Justice and the Federal Bureau of Investigation” is sorely needed.

Final Request for Second Special Counsel

Gowdy and Goodlatte close their letter with a plea to Acting Attorney General Whitaker:

“Our belief remains a Special Counsel should be appointed to investigate not only the decisions made during the pendency of these investigations, but also the disparate way these two investigations were seemingly handled.

“We invite your attention to the transcripts of witness testimony and we encourage you to continue to investigate these matters, consistent with your jurisdiction, so the final definitive accounting can be made to the American people.”

The level of biased and inappropriate activity by our governmental institutions is deserving of an accounting that moves far beyond individuals such as McCabe. Those higher up, such as former CIA Director John Brennan, who directed and encouraged the FBI’s actions, must also be included in any investigative outcome.

Also worth asking: Who directed Brennan? The American people deserve answers.

Jeff Carlson is a CFA® Charterholder. He worked for 20 years as an analyst and portfolio manager in the high-yield bond market. He runs the website TheMarketsWork.com.

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