Watching Monday’s Senate Judiciary Committee hearing on the Hillary Clinton email investigation, it often seemed like the Justice Department inspector general (IG) produced not one but two diametrically opposed reports. Republicans cited the finding of bias and irregularities in the investigation, while Democrats cited the failure to find any decision that was clearly caused by bias. Everyone seems to have gotten something from the report … everything but answers. As with past scandals, that is not likely to change. Indeed, the principle lesson learned from the IG report appears to be the wrong one, to ensure that the public never again gets a glimpse into how such investigations are handled.
During the hearing, Sen. Patrick Leahy (D-Vt.) asked both FBI Director Christopher Wray and IG Michael Horowitz if the FBI was looking into alleged leaks to former Trump campaign adviser and current Trump attorney Rudy Giuliani during the 2016 campaign. Wray responded that “one of the main lessons of this report” was to no longer confirm such investigations, a position that Horowitz echoed. That was a troubling conclusion that produced little response from the committee’s members.
{mosads}It is often the case that Congress asks for the Justice Department to investigate serious matters of alleged misconduct. It will often hold off on pursuing such allegations further, in deference to the FBI. There is no ethical or legal reason why the Justice Department cannot confirm that it is looking into such allegations, any more than it would in the case of investigations of alleged crimes ranging from police abuse or civil rights violations to bombings. Indeed, the confirmation of an independent investigation can assure both Congress and the public that alleged crimes or misconduct by establishment figures are not given special protection.
Yet, Horowitz and Wray said the “lesson” of the report is that it would never again confirm or deny such investigations. Hopefully, they were inartfully saying that such disclosures should come from the Justice Department and not the FBI. However, there is reason to be concerned. If history is any guide, the FBI scandal could be used to avoid future disclosures rather than embracing serious reforms.
It is not true that confirmations of investigations are improper on their face. Fired FBI Director James Comey’s misconduct was not his confirmation of the investigation but his opining on uncharged conduct in a press conference and circumventing the Justice Department. In fairness to Comey, the Clinton email scandal put him and his agency in a difficult position. Congress had asked for an investigation, which was being openly discussed by both campaigns and the media. Comey promised to keep Congress informed of the progress in the investigation and Congress, in turn, deferred to his investigation in its own oversight efforts.
Comey promised to inform Congress if the investigation changed, and did so when the investigation was reopened upon the discovery of additional emails on the laptop of former Rep. Anthony Weiner (D-N.Y,), husband of close Clinton aide Huma Abedin. When he did so, Comey stressed that the reopening of the investigation did not mean that the FBI believed there was evidence of criminal conduct. While I have been highly critical of many of Comey’s actions, I do not fault him on that effort. It was his conduct in the press conference and, later, during the Trump administration, that raised serious ethical and legal concerns.
It was not the disclosure to Congress but the reason for the lateness of the disclosure that was the problem. Lead FBI investigator Peter Strzok made the Clinton investigation a lower priority than the Trump investigation. This was a decision that the IG expressly found highly suspicious. Strzok also was reportedly responsible, with others, in delaying action on the Weiner discovery. Strzok just happens to be the source of some of the most disturbing emails promising that Trump would not be allowed to be president and discussing an “insurance policy” to prevent him from ever taking office.
Many people have been shocked by the disclosure of the false statements, bias and mistakes in the investigation. This includes the redaction of nonclassified material that was clearly removed because it was embarrassing to top FBI officials. It includes an array of false statements and glaring contradictions from officials in giving information to both Congress and federal investigators. It includes a long list of highly biased political statements from not just the chief investigator for the Clinton scandal but numerous other FBI agents. It includes an estimated 50 FBI officials suspected of improper media contacts, including the receipt of gifts from journalists. Yet, members have stressed that this is just one investigation and not the norm.
Of course, we do not know the extent of such misconduct in other cases because Congress rarely exercises its oversight in this way in reviewing investigations. Judging from the statements yesterday, Congress is unlikely to do so again any time soon. The FBI has long sought to insulate itself from serious oversight by claiming classified status or law enforcement privileges. Now, however, it has succeeded in making such insularity a “lesson” learned. One would think that the outrageous conduct disclosed in this report would lead to the lesson that we need more such scrutiny and transparency. Instead, the lesson is that it was transparency that caused the controversy.
That lesson has been eagerly embraced by Democrats in Congress, who used to be advocates for greater transparency and greater oversight over intelligence and law enforcement agencies. Democratic members routinely appear on television expressing outrage that anyone would question the integrity of FBI officials or demand the disclosure of documents. Some members have expressed anger at the notion that the House Intelligence Committee would enforce its oversight authority through its contempt powers after the Justice Department failed to turn over critical documents for review.
The party of Frank Church now sounds like the party of J. Edgar Hoover. This week, Comey and his fired former deputy director, Andrew McCabe, refused to testify before the Senate committee to answer the many questions following the IG report. McCabe invoked the privilege against self-incrimination, while Comey simply refused and continued his lucrative book tour discussing “ethical leadership” with himself as principle model. When Sen. Charles Grassley (R-Iowa) asked the committee to compel their appearance, ranking minority member Sen. Dianne Feinstein (D-Calif.) withheld her needed consent.
If this stonewalling is successful, it will guarantee that the public is left with glaring contradictions in the record and few real answers. This includes diametrically opposing factual accounts by key FBI officials where someone is clearly lying. The FBI has not hesitated to charge others for misleading statements, but it seems to shrug off these conflicts in testimony by its own. For those of us who have criticized the intelligence committees as little more than paper tigers, these investigations show the value of aggressive oversight and transparency. Yet, that clearly is not the lesson learned by the FBI or many members of Congress.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.