The recent report by the Justice Department Inspector General (IG) on the FBI’s Hillary Clinton email investigation is being sliced and diced in many directions by a host of pundits and political partisans. Largely overlooked in all the spin is what in my view constitutes the most troublesome aspect of the Clinton investigation addressed in the report: The nearly one-month gap between when the FBI discovered a large trove of Clinton-related emails on Anthony Weiner’s laptop and when they started to examine these emails.
Two basic points emerge from the IG report’s treatment of this subject. First, the report’s findings and conclusions make a compelling case that the delay in examining the Weiner emails was indeed motivated by political bias or other improper considerations. Specifically:
- The report identifies Peter Strzok as the FBI official directly responsible for following up on the Weiner emails.
- The report presents extensive evidence of Strzok’s bias against Trump, including his explicitly stated determination to prevent Trump’s election.
- The report finds that within days after the discovery of the Clinton-related emails on Weiner’s laptop in late September 2016, FBI officials in Washington understood the extent and potential significance of these emails and had all the information needed to obtain a search warrant to examine them.
- The report demonstrates that a conscious choice was made not to pursue the Weiner emails until after the presidential election. FBI officials, including Strzok, conceded this choice and offered various explanations for it.
- The report concludes that none of the proffered explanations was persuasive. In particular, it states “we do not have confidence that Strzok’s decision” in this regard “was free from bias.”
Second, the delay in examining the Weiner emails triggered a series of events that may well have changed the election outcome. Putting off the Weiner emails until after the election became untenable in late October when the FBI’s New York office pushed back against the delay and, in effect, forced Washington officials to act. This, of course, caused two weeks of political frenzy in the waning days of the presidential campaign, starting with FBI Director Comey’s infamous October 28 letter notifying Congress that the Clinton investigation was being reopened. Not until two days before the election did Comey send a second letter announcing that the Weiner emails did not affect the Clinton case after all.
Many partisans as well as some independent observers are convinced that Comey’s October 28 letter tilted the election to Trump. We may never know for sure whether Strzok delayed the examination of Weiner’s laptop in order to give Clinton a boost over Trump. However, whether or not this was his plan, the delay certainly had the opposite effect. So much so that, in a remarkable twist of irony, Trump may have Strzok to thank for his election.
Background of the IG review. The IG review focused on three major phases of the Clinton email investigation: the investigative steps leading up to the decision to decline prosecution of Clinton, the declination decision itself, and the reopening of the investigation after Clinton-related emails were found on Weiner’s laptop. For each of these phases, the IG considered whether investigative or prosecutorial decisions were based on political bias or other improper considerations.
The report has been described as concluding that none of the decisions resulted from political bias. However, this is not what it says. In examining the question of bias, the IG applied two distinct tests: First, was there “documentary or testimonial evidence that improper considerations, including political bias, directly affected specific decisions”? Second, were there plausible merit-based justifications for the decisions or were the stated justifications merely “pretextual”? (iii) (Parentheticals reference page numbers in the report) With regard to the latter, the report observed:
“The question we considered was not whether a particular investigative decision was the ideal choice or one that could have been handled more effectively, but whether the circumstances surrounding the decision indicated that it was based on considerations other than the merits of the investigation. If the choice made by the investigative team was among two or more reasonable alternatives, we did not find that it was improper even if we believed that an alternative decision would have been more effective.” (ii-iii)
The IG found no “documentary or testimonial evidence” that any decision was “directly affected” by political bias or other improper considerations. This test sets an extremely high bar that essentially nothing short of a confession would meet. Thus, the absence of such “smoking gun” evidence is unsurprising (although the Strzok evidence comes very close). On the second and more realistic test, the IG concluded that all decisions it evaluated up to and including the declination were reasonably justified on the merits and thus appropriate exercises of discretion. As discussed below, however, the IG concluded that the FBI’s handling of the Clinton-related emails on Weiner’s laptop was a very different story.
The Weiner emails. In September 2016, after the Clinton investigation closed, the FBI’s New York field office began investigating Weiner, the husband of top Clinton aide Huma Abedin, for an improper online relationship with a minor. Pursuant to a search warrant, the New York agents seized Weiner’s laptop and other electronic devices on September 26. The New York FBI case agent charged with examining these devices discovered almost immediately that the laptop contained a huge trove of Clinton-related emails. Recognizing its potential impact on the Clinton investigation, he promptly notified his superiors of this discovery. Just two days later, on September 28, New York agents briefed the Washington FBI on the existence of the email trove via a video teleconference. According to the IG report, Deputy FBI Director Andrew McCabe led the teleconference and about 39 senior FBI executives likely participated. (vii) McCabe told the IG that he viewed the discovery of the emails as a “big deal” (281) and on the same day he instructed Strzok to have his team contact the New York office about them. (279)
Strzok was the leader of the FBI’s Clinton email investigative team. (43) According to McCabe, he also was directly responsible for following up on the Weiner laptop. (310) Strzok and Lisa Page, his paramour and another senior FBI official heavily involved in the Clinton investigation, are now widely known for their anti-Trump texting. The most notorious example, first revealed in the IG report, is Strzok’s assurance to Page that “We’ll stop” Trump from ever becoming President. (xii)
The logical next step at this point was for the Washington FBI agents to obtain their own search warrant to access and review the Clinton-related emails on Weiner’s laptop. (The New York agents investigating Weiner had neither the legal right under their search warrant nor the background to review the Clinton emails.) Remarkably, however, no effort was made to get the search warrant for almost a month. The IG report states that several discussions about the Weiner emails occurred on October 3 and 4 but:
“[A]fter October 4, we found no evidence that anyone associated with the [Clinton] investigation, including the entire leadership team at FBI headquarters, took any action on the Weiner laptop issue until the week of October 24, and then they did so only after the Weiner case agent expressed concerns . . . prompting [New York officials] to contact the Office of the Deputy Attorney General (ODAG) on October 21 to raise concerns about the lack of action.”
Specifically, the Weiner case agent feared that the delay in dealing with the emails he had discovered would eventually become known and he would be “scapegoated.” (305) In this regard, the New York officials cautioned that the case agent “was stressed out and might act out in some way.” (304)
The IG report rather dryly observes that this warning from New York generated “renewed interest” on the part of the Washington FBI in the Weiner email issue. (311) As they say, the rest is history. Within the next two weeks Washington finally got its search warrant, Comey sent his October 28 letter, FBI agents worked “around the clock” to review the emails, and on November 6—just two days before the election–Comey notified Congress that the emails did not change the FBI’s earlier conclusions regarding the Clinton case.
As noted previously, Comey’s October 28 letter may well have changed the election outcome. The fallout from the letter certainly dealt a tremendous blow to the FBI’s credibility and stature as a nonpartisan organization. Had the FBI promptly accessed and evaluated the Weiner emails, these consequences very likely would have been avoided. To be sure, Comey might have felt obliged to notify Congress even if this effort had started in early October. However, the process would have played out weeks rather than days ahead of the election, thereby giving the public considerably more time to process the FBI’s eventual conclusion that the Weiner emails did not affect its Clinton findings.
Supposed explanations for the delay. The IG report didn’t uncover a formal, documented decision to delay action on the Weiner laptop. However, it’s clear from the report that Strzok, perhaps with the involvement of other FBI officials, made a conscious and informed choice to hold off on the Weiner laptop until after the election. Strzok said as much to the IG. (See below) There is no chance that the matter simply fell through the cracks.
FBI officials offered the IG a litany of explanations for their failure to take prompt action on the Clinton-related Weiner emails. The IG report analyzed the explanations and found every one of them to be “unpersuasive.” This characterization is charitable given the report’s conclusions that the proffered explanations ranged from the “illogical” (326) to the following outright falsehood:
“Several FBI witnesses told us that the reason the FBI decided to seek a search warrant on October 27 was because the [Clinton] team learned important new information about the contents of the Weiner laptop at around that time. We concluded, however, that this decision resulted not from the discovery of dramatic new information about the Weiner laptop, but rather as a result of inquiries from the Weiner case agent and prosecutors from the U.S. Attorney’s Office for SDNY on October 21.” (330)
Indeed, the IG found that by no later than September 29, the Washington FBI had learned virtually every fact that it cited in late October as justification for obtaining the search warrant. (324)
Strzok suggested that he didn’t expect the emails to be significant and that they were just a lead to be pursued at some point, “January, February 2017, whenever it gets done.” (298) He considered the perceived need to pursue the emails more urgently to be “misplaced” since “[w]e did not know what was there.” (326)
Strzok (and others) also said that they considered the Russia investigation a higher priority than the Weiner emails. (328-329) The IG found, however, that the FBI had ample resources to assign to the Weiner emails. The report added with specific reference to Strzok’s role:
“In assessing the decision to prioritize the Russia investigation over following up on the [Clinton]-related investigative lead discovered on the Weiner laptop, we were particularly concerned about text messages sent by Strzok and Page that potentially indicated or created the appearance that investigative decisions they made were impacted by bias or improper considerations. . . . Under these circumstances, we do not have confidence that Strzok’s decision to prioritize the Russia investigation over following up on the [Clinton]-related investigative lead discovered on the Weiner laptop was free from bias.” (p. ix)
The IG was right to be particularly skeptical of Strzok’s stated justification. His explanation that the Weiner emails should not be given priority attention because the FBI “did not know what was there” is circular and implausible on its face. Obviously, the way to find out “what was there” was to take a look. Strzok could easily have obtained a search warrant and sent a few agents “to get eyes on this thing and figure out what we have,” as McCabe put it. (281) His decision to forego even this minimal effort clearly demonstrates willful blindness, reflecting a desire not to know what was in the emails.
The bogus nature of this explanation becomes even clearer when one considers the background at that time. Strzok’s superiors in the FBI immediately recognized the discovery of the Weiner emails as a “big deal” and expected him to take action. The FBI leadership treated it as an even bigger deal when they finally took action in late October. It must have been obvious to Strzok as well that if there was any chance that the Weiner emails contained anything new, they could potentially impact the disposition of the Clinton investigation as well as the upcoming presidential election.
Conclusions. The IG report stops short of flatly asserting that the FBI’s delay in dealing with the Weiner emails resulted from political bias or other improper considerations. However, the facts it presents virtually compel this conclusion under the IG’s own criteria. The report points to Strzok as the FBI official directly responsible for the delay, although certainly not the only one who could (or should) be accountable. It makes clear that the delay was no accident. It presents abundant evidence of Strzok’s political bias, including his willingness (indeed, his apparent determination) to “stop” Trump’s election. It then concludes that there was no legitimate reason for the delay—i.e., all the stated justifications were pretextual. Connecting these dots, the delay could only be attributable to political or other improper considerations.
Delaying the examination of the Weiner emails would have helped Clinton’s electoral chances had it run its course. As fate would have it, however, the FBI was forced to dramatically reverse course in the run-up to the election. One can speculate on whether the delay was motivated by political bias per se or perhaps some other inappropriate reason or reasons such as avoiding embarrassment to the FBI or currying favor from presumed incoming President Clinton. What can be said with certainty is that if delay on the Weiner emails was intended to help Clinton’s electoral chances or somehow protect the FBI, it backfired spectacularly and ultimately achieved precisely the opposite effect.