The report of the FBI inspector general, Michael Horowitz, has now been made public, and the general response of the media has been "nothing to see here."
In particular, the mainstream media has generally claimed that the findings of the inspector general fail to support Mr. Trump’s repeated charge that the Mueller investigation of him for purported Russian collusion is a "witch hunt."
However, a careful reading of the report vindicates the president. While the report was not exclusively focused on the Russia investigation, the accounting makes clear that there was political chicanery in the Obama administration.
The report does not examine Mr. Mueller’s Office of special Counsel, but Mueller’s appointment flowed from a Department of Justice (DOJ) and an FBI that are subjects of the report.
A reading of that assessment reveals the leadership of the FBI, and, in particular its Director, James B. Comey, as well as those participating in the examination of Mrs. Clinton’s use of a private server for confidential state department business, to have been irresponsible at best (indeed in Mr. Comey’s case the adjectives "extraordinary and insubordinate" are used) and politically biased at worst.
The Executive Summary of the inspector general's report flatly states that when then Director Comey said on July 5, 2016 "no reasonable prosecutor" would bring charges against Mrs. Clinton for her conduct of official state department e-mail business on her own "home-brew" unsecured server stored in the basement of her Chappaqua, New York home, Mr. Comey, "usurped the authority of the attorney general, and inadequately and incompletely described the legal position of department prosecutors."
It was clear then, as it is now (and this is the reason that Deputy Attorney General Rod Rosenstein advised Mr. Trump to fire Comey [which Trump did]) that decisions on who to prosecute are matters for the Department of Justice — not the FBI.
The FBI is an investigative agency — not a prosecutorial one.
Using carefully hedged bureaucratic language, the insepctor general's findings nevertheless make clear conclusions that the FBI’s investigation of Mrs. Clinton’s behavior did not have a persuasive justification for waiting several weeks in the fall period before the 2016 election to seek to examine possibly illegally stored e-mails from Mrs. Clinton’s server on the laptop of Clinton Aide Huma Abedin’s husband Anthony Weiner.
That laptop, remarkably, was obtained by the FBI in the course of an examination of Weiner for inappropriate sexual conduct with a minor.
The inspector general noted that some members of the FBI Clinton investigative team, most notably the infamous lovers Peter Strzok and Lisa Page, were also involved in the FBI investigation of alleged Russian interference to support the Trump campaign, and that these two had sent text messages. Among those mesaages was one indicating that "'we’ll stop' candidate Trump from being elected," and that this "potentially indicated or created the appearance that investigative decisions they made were impacted by bias or improper considerations."
This is one of the great understatements of our era.
The inspector general says that he cannot conclude Strzok’s decisions were "free from bias," which is a polite way of indicating that they were not. The inspector general's account referred Strzok and four other FBI staffers who had sent e-mails clearly indicating hostility to candidate Trump and affinity for Candidate Clinton to the appropriate FBI authorities to determine whether their messages "violated the FBI’s Offense Code of Conduct."
This was, then, a conclusion that these five (including Strzok) ought to be facing potential punishment within the organization. The inspector general's report leaves open the possibility, of course, that such misconduct might also be criminal in nature, or have led to the commission of crimes.
Perhaps the best way to approach the inspector general's conclusion that it is not proven that corrupt bias affected the decision to exonerate Mrs. Clinton is that this is not the same thing as a finding that corrupt bias did not affect the result. In other words, the inspector general is saying, "I can’t tell." But, as indicated, he did find bias on the part of some FBI officials, and the implication is that reasonable people could conclude that bias affected the result.
Another section of the inspector general's report makes clear that President Obama communicated with Mrs. Clinton on her unsecured server, and that he did so, in fact, before the time that Mr. Obama indicated publicly that he became aware of the existence of her server, which he later denied compromised national security. This casts a cloud over President Obama’s reputation for veracity, and is what Chicago Tribune columnist John Kass this week called a "silky lie."
Many Democrats have read the inspector general's report to support their claim that Director Comey’s actions cost Hillary the election. It is far more likely, of course that the reports of Mrs. Clinton’s lapses in security, and the general duplicity of the Obama administration were what caused so many Americans (even many who had voted for Mr. Obama) to reject Mrs. Clinton.
The inspectorgeneral's report can be interpreted as a plea for the FBI to follow the rule of law.
It can also viewed as a condemnation of Mr. Comey, Mr. Strzok, Ms. Page — as well as Mrs. Clinton and Mr. Obama. It does not clearly charge any of them with crimes, but it does not deny the possibility of improper or criminal conduct.
There are still investigations underway, even by Mr. Horowitz, and this particular report is not the last word. Criminal prosecutions may still be forthcoming.
In any event, given that it was Mr. Comey who we now know carefully plotted, by his leaking of classified information to his friend, Columbia Law professor Daniel Richman, to have that information released to the media. Director Comey expected that release to result in pressure to name a special counsel to examine the campaign of Mr. Trump.
That is precisely what happened.
An objective observer, then, ought to conclude that as the inspector general'sreport suggests, if Mr. Comey’s judgement, if not his motives, are subject to question, so should be Robert Mueller’s appointment.
President Trump and his supporters are correct to be concerned.
Not only has there been at least no publicly-acknowledged evidence of collusion with Russia (supposedly the subject of the Mueller probe), the entire investigation has served as a distraction, and a sideshow hatched by political partisans guilty not only of failing to follow proper procedures, but of displaying a contempt for the judgment of Americans themselves.
The inspector general's report laments the loss of confidence in the integrity of the FBI and the Justice Department generally in the course of the investigation of Mrs. Clinton.
Such loss of confidence multiplied during the course of the Mueller probe. Mr. Mueller would be doing the nation a service if he ends his probe as quickly as possible, or, better still, resigns and transfers any remaining prosecutions (none of which seem to be connected to any purported collusion), to the offices of the appropriate U.S. attorneys.
As my colleague Steven Calabresi has argued, the very appointment of special counsels like Mr. Mueller flies in the face of the Constitution. Such appoinments undermine the concept of separation of powers — and thereby the rule of law.
It's time for Mr. Mueller to leave the stage and allow Mr. Trump to get on with the business of eradicating the abuses of the prior administration. The inspector general has highlighted those abuses.
It's long past time to remedy them.
Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). Presser was recently appointed as a Visiting Scholar in Conservative Thought and Policy at the University of Colorado's Boulder Campus for 2018-2019. To read more of his reports — Click
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