Investigating the Investigation

While the investigation of Special Prosecutor Robert Mueller into allegations that Team Trump colluded with the Russians to affect the outcome of the 2016 election has dominated the news cycle for much of the past year, the revelations from three investigations taking place concurrently in the House and Senate may end up producing the more startling revelations. What has come to light so far in the latter investigations has already been sufficient to tarnish the reputation of President Barack Obama and to raise serious questions about the political neutrality of the FBI and the Justice Department under President Obama.

Much of the most recent information to reach the public comes from emails exchanged by FBI agent Peter Strzok and Lisa Page, an attorney with the FBI. They both played senior roles in the investigation into former Secretary of State Hillary Clinton’s private email server and handling of classified information during the period she served as secretary of state, and subsequently both joined Mueller’s team, until a series of emails broadcasting their loathing of President Donald Trump forced the special prosecutor to drop them from his team.

In particular, Strzok wrote to Page after a meeting in the office of FBI Deputy Director Andrew McCabe in August 2016 that while she was likely correct that Donald Trump had no chance of being elected, nevertheless, it was too great a risk to take, and therefore an “insurance policy” needed to be in place. That insurance policy is widely understood to refer to the Trump-Russian collusion investigation.

The crucial recent revelations from the Strzok-Page correspondence deal with the events leading up to then FBI Director James Comey’s July 5, 2016 announcement that there would be no prosecution of Clinton, and the drafting of that statement. Preparation of that statement had already been in the works for two months, even though Comey did not interview the former secretary of state herself until July 2, 2016.

A June 30 draft read: “[Clinton] also used her personal email extensively while outside of the United States, including from the territory of sophisticated adversaries. That use included an email exchange with the president while Secretary Clinton was on the territory of such an adversary.” That same day, a revised draft removed the reference to the president and replaced it with a reference to “a senior government official.”

By July 5, however, that reference, too, had been dropped. The identity of the senior government official in question could not have remained hidden forever, in the face of both journalistic and congressional inquiries. So the final statement issued on July 5 omitted any mention of those with whom Clinton was in contact.

Andrew McCarthy, the senior prosecutor in the first World Trade Center bombing case, has long maintained that President Obama’s correspondence with Secretary of State Clinton at her private account guaranteed from the start that Clinton would never face prosecution, for if she was culpable, so was Obama for corresponding with her at an unsecured address. The president obviously knew how problematic such correspondence was, as he employed a number of aliases to cover his identity.

Three days after the New York Times originally broke the story of Clinton’s private server on March 4, 2016, President Obama told CBS News that he had learned about Clinton’s emails “the same time everyone else learned it through news reports.” That statement sent off alarms in the Clinton campaign, where many senior staffers knew that the president’s statement was untrue. Cheryl Mills, Clinton’s chief of staff at the State Department, emailed campaign chairman John Podesta. “We need to clear this up – he has emails from her – they do not say state.gov.” In other words, they were not from an official State Department server.

Obama subsequently had his email communications with Clinton sealed, citing what McCarthy terms a “dubious presidential-records privilege.” And the White House staff amended the president’s original statement that he had known nothing of the Clinton’s use of private email to mean that he had known nothing of her private server, even though he knew she occasionally used private emails. But the point was not to which private server she was connected, but that she was not using the State Department server, presumably designed to provide the maximum security against hacking.

Not only did the Strzok-Page correspondence provide the motive for the Obama Department of Justice and FBI to have acted with somewhat less determination than Inspector Jauvert in their efforts to probe Secretary of State Clinton’s private server, but they also contained a great deal of evidence that the investigation was hardly impartial and that the decision not to prosecute was baked in.

For instance, Attorney-General Loretta Lynch came under a great deal of criticism after a private meeting with Bill Clinton on an airport tarmac in Arizona on June 27, 2016. Thereafter, Lynch announced on July 1 that she would not make the final decision on whether to prosecute Hillary Clinton over her handling of classified information. Rather, she would abide by the decision of FBI Director James Comey.

The next day, Page wrote to Strzok that Lynch’s announcement was not exactly a profile in courage moment, because she had already been informed that there would be no prosecution. That itself is noteworthy in that Comey had not yet interviewed Clinton. That interview only took place on July 2, after Lynch already knew of Comey’s decision, according to Page.

Nothing about that interview, former prosecutor McCarthy points out, suggests that Comey’s decision to let Clinton off the hook had not already been made. Two details, in particular, stick out. First, Clinton was not placed under oath, something a prosecutor still considering a prosecution would surely have done. Second, Comey allowed Cheryl Mills and Heather Samuelson, senior aides to Clinton, to attend the meeting as “attorneys” for Clinton, despite the fact that each of them had been interviewed previously about their knowledge of Clinton’s private server, i.e., as potential witnesses. McCarthy also points out that had Clinton had the slightest concern that she might be prosecuted, she would never have agreed to be interviewed.

On July 5, as Page had predicted, Comey announced that Clinton would not be prosecuted, though he excoriated her “extremely careless” handling of classified materials. He offered as grounds for not prosecuting that it would be impossible to prove that Clinton had an intention to harm U.S. national security. Comey was careful to stress that he had not informed Attorney-General Lynch of what he was going to say.

Lynch, however, could have cared less what he was going to say, as long as there was no criminal prosecution. And she already knew there would be none. Comey’s straight, boy scout image has been tarnished forever.

And the announced grounds for clearing Clinton of criminal culpability – lack of the requisite intent – was also bogus. The relevant statute makes no reference to such a requirement of intent. Gross negligence, regardless of intent, is all that is required. (An early draft of Comey’s statement described Clinton’s handling of classified material as “grossly negligent,” tracking the statute, but Strzok helpfully amended that language that to “exceedingly careless.”)

As shaky as the legal basis for Comey’s decision was, it at least had the approval of no less a legal scholar that former constitutional law professor Barack Obama. In an April interview, Obama expressed his view that his former Secretary of State and sometime correspondent should be cleared because she had not intended to harm national security.

And lo and behold, James Comey followed that reasoning. Donald Trump can only wish his views held such sway in the Department of Justice and the FBI over which he nominally holds executive power.

In coming weeks, we will take up the congressional investigations into the DOJ’s and FBI’s handling of the Trump-Russia collusion investigation, an even more important topic from the point of view of the impartiality of the United States’ major law enforcement bodies.