Inspector general’s new report on FBI, Comey, Clinton and 2016, explained

A hotly anticipated inspector general report about then-FBI Director James Comey’s handling of the Hillary Clinton email investigation is finally complete. It’s set to be released to Congress Thursday afternoon — and is guaranteed to become a lightning rod in President Trump’s clashes with his own Justice Department.

We’re still awaiting the full text, but Chris Strohm of Bloomberg News reports that the IG’s conclusions include the following:

1) Comey’s actions in the Clinton case departed “clearly and dramatically from FBI and department norms” and hurt the “perception of the FBI” — but they weren’t the result of “political bias.”

2) Specifically, it was not Comey’s job to publicly proclaim what a “reasonable prosecutor” should do in the Clinton case — the FBI is supposed to investigate, while the Justice Department makes charging decisions.

3) Texts between affair-having FBI officials Peter Strzok and Lisa Page did have political bias, but the IG found no evidence that “improper considerations” affected their investigative actions in the Clinton case.

However, the New York Times reports that the IG concluded that “because of his views, Mr. Strzok may have improperly prioritized the Russia investigation over the Clinton investigation during the final weeks of the campaign.” And a newly-discovered text in which Strzok tells Page that Trump won’t become president because “we’ll stop” it will surely raise questions about his conduct.

Michael Horowitz, the inspector general writing the report, is an Obama appointee, and when he first announced he was reviewing the DOJ and FBI’s actions all the way back in January 2017, many Clinton supporters eagerly hoped he would take Comey to task for actions that they felt inappropriately affected the presidential election.

But we now live in a world where former FBI Director James Comey is a prominent critic of Trump and an important witness in special counsel Robert Mueller’s investigation of whether the president obstructed justice.

Even though Horowitz’s report isn’t about the Russia investigation at all, it will be released in a political context dominated by both Mueller’s probe and Trump’s attacks on his Justice Department. Indeed, Trump has recently signaled that he’s eagerly anticipating the IG report, since it was expected to criticize Comey, and he is trying to undermine Comey’s credibility.

However, commentators on all sides of the political spectrum had — and still have — reasonable complaints about Comey’s unusual choices during the 2016 campaign.

Horowitz has spent six years in the IG job, has a good reputation, and is by all appearances nonpartisan. Furthermore, the inspector general operates with a measure of independence from government higher-ups. Now he’s about to walk into the most dangerous political maelstrom he’s faced yet. But to understand the new report, you have to first understand the inspector general role — and Horowitz himself.

What is an inspector general?

Often called the “watchdog” for the federal government, an inspector general is supposed to investigate allegations of misconduct within his or her particular agency. Each major Cabinet department has one, and so do various other federal offices and agencies — there are 73 inspectors general (or IGs) in total. (This helpful CRS report lists them all.)

When inspector general offices were first established in the mid-1970s, their primary task was to investigate “waste, fraud, and abuse” in federal spending, and that remains an important part of their job today.

But gradually, their authority has expanded to the point where IGs have become all-purpose scandal investigators. It’s become understood that when something controversial goes down at an agency, it’s the IG — who’s outside the normal chain of command — that’s supposed to look into it. IGs can start investigations based on whistleblower complaints, referrals from their office’s leadership, or requests from Congress.

A department’s IG has the authority to examine relevant records from the department, from memos to emails. IGs have subpoena power and can arrange interviews of current employees — interviews in which it would be a crime to make false statements. So their investigations have the potential to be quite vigorous.

Yet one crucial thing to understand is that inspectors general have no authority to actually charge anyone with crimes (or indeed, to impose any disciplinary actions). Their investigations end when they assemble reports on what they found. These reports, which are generally made public, can recommend that people be prosecuted, but actual charging decisions are left to elsewhere in the Justice Department.

The most prominent IGs are all presidential appointees who have to be confirmed by the Senate. However, the offices do have a reputation for independence. Though the president can fire them so long as he tells Congress why in advance, in recent decades that’s rarely been done. Instead, IGs are generally (though not always) left in place and get to serve until they choose to move on.

Trump has so far abided by that tradition. Nearly all of the most prominent inspectors general are still holdovers from the Obama or even George W. Bush administrations. They include the IGs for State, Treasury, Defense, Health and Human Services, the Environmental Protection Agency, Veterans Affairs — and Justice Department Inspector General Michael Horowitz.

Who is Michael Horowitz?

DOJ Inspector General Michael Horowitz.
Tom Williams/CQ Roll Call/Getty

By now, Trump has cleared out most of the Justice Department’s Obama-era leadership — but Inspector General Michael Horowitz remains.

Horowitz has deep roots in the department. From 1991 to 1999, he worked as an assistant US attorney in Justice’s prestigious Southern District of New York office, where he led a major investigation into police corruption. He was then promoted to higher-level roles in the main Justice Department’s criminal division — first as deputy assistant attorney general and then as the division chief of staff. In 2002, he left the government and spent the next decade as a partner at the law firm Cadwalader, Wickersham & Taft (where he was well-compensated).

When the Justice Department’s well-respected Inspector General Glenn Fine decided to resign after a decade in the post, President Obama decided to nominate Horowitz to replace him. With congressional Republicans already demanding various investigations into the Obama administration, Horowitz was likely picked because he was a nonpartisan figure who’d worked under presidents of both parties. The Senate confirmed him without objection in the spring of 2012.

Horowitz has served in the post in the six years since. In that time, he’s overseen investigations into politically charged matters like “Fast and Furious,” the mishandled operation to infiltrate a weapons-smuggling ring in which law enforcement officials allowed hundreds of weapons to be smuggled into Mexico. (Horowitz’s report criticized 14 officials for mishandling the matter.)

He’s occasionally clashed with Justice and FBI leadership, publicly criticizing them for failing to turn over records on grand jury investigations relevant to his probes. And he’s become a sort of champion for the IGs themselves, chairing a council of inspectors general and asking Congress to give IGs more investigative powers.

Overall, Horowitz is viewed as a vigorous investigator who takes his job quite seriously. He generally isn’t believed to have political motivations — his only known donation is to Sen. Michael Bennet (D-CO) in 2010. “Straight shooter” is one of the most common phrases used to describe him. But now he’s been tasked with his most hot-button investigation yet.

What is this IG report about?

On January 12, 2017 — after Trump had won the election but before his inauguration — Horowitz announced that he was opening “a review of allegations regarding certain actions” by the Justice Department and FBI “in advance of the 2016 election.”

By that, he meant, mainly, officials’ handling of the now-closed Hillary Clinton email probe, and not the probe of the Trump campaign’s ties to Russia. (The latter investigation hadn’t even been publicly confirmed to exist at the time and is still ongoing even today.)

To recap the infamous chain of events in the Clinton probe: When it emerged in 2015 that Clinton had used a personal email account on a private server for all of her emails while she was secretary of state, the Justice Department launched an investigation into whether she had mishandled classified information. Eventually, in a decision Comey says was unanimous among his investigative team, the FBI privately concluded that it wouldn’t recommend any charges in the matter.

But by the summer of 2016, the case had become enormously politically charged, with GOP nominee-in-waiting Donald Trump repeatedly claiming the investigation would result in Clinton’s indictment. And after word leaked out that Attorney General Loretta Lynch and Bill Clinton had met on an airport tarmac in late June, Republicans claimed the fix was in.

So on July 5, 2016, Comey bypassed Justice Department leadership to make a highly unusual public statement in which he announced that though he believed Clinton had been “extremely careless” in her email practices, he would not recommend any charges in the case. Republicans blasted him for his conclusion that charges weren’t necessary, while some Democrats questioned why he felt compelled to pontificate publicly about a probe in which he found no criminal wrongdoing.

Comey’s public statements about the case continued, first in extensive congressional testimony, then in an October 28 letter announcing the FBI had discovered new emails that could be relevant, and then in another November 6 letter saying the new emails didn’t change the FBI’s investigative conclusion. All this was highly unusual, to say the least, and some analysts believe Comey‘s late letters helped swing the election to Trump.

Horowitz’s January 2017 announcement suggested he’d examine criticisms of Comey‘s behavior from all sides of the political spectrum — and certain other officials’ conduct too. These included then-Deputy FBI Director Andrew McCabe (who some conservatives said should have recused himself because Clinton ally Gov. Terry McAuliffe had earlier helped fundraise for McCabe’s wife’s failed state Senate campaign), and then-Justice official Peter Kadzik, who had contacts with Clinton campaign chair John Podesta. Finally, Horowitz also said he would look into DOJ and FBI leaks that happened during the campaign more generally.

What did the IG report find?

We’re still awaiting the full text of the report, but the fullest accounting of what Horowitz concluded so far comes from Chris Strohm of Bloomberg News.

According to Strohm, the report concludes that Comey public announcement that he would recommend no charges in the Clinton email case went contrary to Justice Department tradition — because it is the Justice Department, not the FBI, that is supposed to decide on charging decisions. (The FBI is just supposed to investigate.)

Horowitz says he found no evidence that Comey made his decisions because of political bias — but that they ended up hurting the public perception of the FBI anyway.

Indeed, according to Justice Department policy and tradition, the FBI should not make grand public pronouncements and criticisms about someone who hasn’t been charged with any crime. They also shouldn’t announce investigative actions that could impact an election just days before that election.

Comey did both of these in the Clinton case. He claims he was trying to preserve the reputation of the FBI for impartiality. “The confidence of people that the system is working in a fair way, that Lady Justice has kept her blindfold on, matters,” he’s said. (Less charitably, his actions could be construed as an attempt to protect himself politically from expected criticisms from the right.) Yet Horowitz might not be so convinced that these allegedly lofty motivations justify Comey’s highly unusual behavior.

According to Strohm, Horowitz also concluded that anti-Trump text messages exchanged by FBI officials Peter Strzok and Lisa Page, who were involved in the Clinton case and having an affair, were ill-advised and displayed bias. He did not find evidence that that affected any decisions in the email case itself. But the New York Times reports Horowitz concluded that “because of his views, Mr. Strzok may have improperly prioritized the Russia investigation over the Clinton investigation during the final weeks of the campaign.”

Other officials are expected to come in for criticism too, including Loretta Lynch. Plus, Horowitz has already referred Comey’s former deputy at the FBI, McCabe, for criminal prosecution, saying McCabe misled investigators about his role in a pre-election leak about an investigation into the Clinton Foundation. Horowitz broke out these criticisms into a separate IG report — read this post for more on that — but he may have more to say about McCabe and the email case here.

What does all this mean for the Russia investigation?

Horowitz’s report may well be quite reasonable in what it concludes. But inevitably, and almost regardless of the report’s specifics, President Trump will attempt to exploit it to try and discredit the Russia investigation (even though, again, this IG report is not actually about the Russia investigation).

It’s not the first time Trump has tried to use the Clinton email case against Comey. Back when Trump fired him as FBI director in May 2017, the White House initially put out a cover story saying he did so because Comey violated DOJ policy in the Clinton email probe.

This was self-evidently absurd, because the DOJ memo criticized Comey for actions that hurt Clinton (his critical public statement about her, and his late letter saying new emails had been found). Trump, meanwhile, had long made it unmistakably clear that he thought Comey was too easy on Clinton in 2016 — and he ended up torpedoing his aides’ story by admitting the Russia probe played a role in his decision just two days later.

But now the new IG report could prove useful to Trump for a few different reasons, as Mueller investigates whether Trump obstructed justice by firing Comey.

For one, Comey is an important witness to Mueller, and several of his key interactions with Trump occurred without anyone else present. Trump, naturally, has aimed a barrage of criticism at the fired FBI director in an attempt to impugn his credibility as a witness, calling him “a leaker and a liar.”

Trump is also searching for ways to argue that he was correct in firing Comey, and that that act did not constitute obstruction of justice. So if the IG concludes that Comey mishandled the Clinton email case, Trump will likely question how firing an FBI director who’d made such major errors could possibly be construed as obstruction. (However, many legal experts believe that if Trump fired Comey with corrupt intent, in hopes of thwarting an investigation he viewed as dangerous for either himself or his allies, it could still be obstruction.)

The IG report is also being released in the midst of a continuing effort by Trump to try to undermine the Justice Department’s independence and discredit the Mueller probe more generally as part of a “deep state” plot against him. So the more Horowitz criticizes the Obama-era Justice Department leadership, the more ammunition Trump will have against them too.

Horowitz, though, is likely trying to ignore this larger political battle by focusing only on his particular role — to assess whether there was any Justice Department misconduct with regards to the 2016 election. Perhaps, in the end, that’s all he can be expected to do.

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