The Justice Department’s internal watchdog is set to release a scathing, 500-page report Thursday addressing unanswered questions about the FBI’s probe of Hillary Clinton’s use of a private email server while secretary of state.
“It should have something for both sides,” @TomFitton says.
Michael Horowitz, the Justice Department’s inspector general, released a report in April that led to the ouster and referral for criminal prosecution of Andrew McCabe, former acting director and No. 2 official of the FBI.
Horowitz also is investigating surveillance warrants for a Trump campaign aide and circumstances surrounding a confidential informant for the FBI who communicated with Donald Trump campaign aides in 2016.
But the Justice Department inspector general’s examination of how the FBI handled the Clinton email investigation has been highly anticipated on both sides of the aisle, and perhaps dreaded by the Obama administration’s attorney general, Loretta Lynch, and its FBI director, James Comey.
Horowitz opened the investigation in January 2017. Here are five key questions his long-anticipated report may answer:
1. Will the IG Find Criminal Conduct?
In July 2016, without consulting Lynch, Comey announced that Clinton’s use of a private email server to conduct official business as secretary of state from 2009 through 2012 was careless but did not rise to the level of a prosecutable offense.
Four months later, Trump defeated Clinton in the presidential election.
A main question is whether there is enough in the inspector general’s report to refer aspects of the Clinton case to prosecutors, said Sidney Powell, a former federal prosecutor who served as chief of the two appellate divisions in Texas.
“We could see [criminal] referrals for investigating false statements and perjury with respect to the mishandled investigation,” Powell told The Daily Signal. “There could potentially be a conspiracy charge.”
U.S. Attorney for Utah John Huber has assisted Horowitz in fact-finding during the investigation, and could take up criminal referrals that result from the report. Or officials could refer findings to the U.S. Attorney’s Office for the District of Columbia, as was the case with McCabe, Powell said.
The IG’s office is limited. Investigators there can interview Justice Department employees and seek documents, but unlike prosecutors, they lack power to issue subpoenas or bring charges.
Since a criminal investigation would be of employees of the Justice Department, prosecutors could assign the probe to a prosecutor outside Washington, such as Huber, who is part of the Justice Department but not part of the agency’s main operation in Washington.
In one precedent, Patrick Fitzgerald, a U.S. attorney in Illinois, investigated a leak during the George W. Bush administration.
Officials could tap a prosecutor outside the Justice Department, similar to the naming of former FBI Director Robert Mueller as special counsel on the probe of Russia’s meddling in the 2016 election and possible coordination with the Trump campaign.
The FBI is a division of the Justice Department. The chief offense against certain Justice Department officials in Washington or the FBI could be obstruction of justice, said Ron Hosko, a former assistant director of the FBI.
“Do you have someone obstructing a lawful investigation? They have the obligation to report all information,” Hosko told The Daily Signal. “If you are not doing your job faithfully or making false statements in an official report, it’s illegal.”
Hosko suggested that a new criminal probe likely would require another special prosecutor, potentially Huber.
“This could lead to another prosecutor to investigate whether people acted willfully and intentionally within the FBI and the DOJ to thwart a fair, full, and legitimate investigation, or quash it for political reasons,” Hosko said.
Hosko pointed to text messages between FBI officials Peter Strzok and Lisa Page during 2016 that exhibited a pro-Clinton, anti-Trump bias.
“This will look at the Strzok and Page political bent and whether this infected the case decision [on Clinton],” he said. “If yes, it should be prosecuted because it represents an infection on the bureau. Or, it could have been they were expressing personal political views that had no impact on the investigation.”
2. Will This Mean a New Investigation of Hillary Clinton?
Depending on the findings, the IG report could open the door for another probe into Clinton’s emails and how she cooperated with FBI investigators, legal experts said.
Although Horowitz’s probe could find the investigation was incomplete, Hosko does not anticipate a reopening of the review of how Clinton used a private, unsecured server to send and receive classified information as President Barack Obama’s first secretary of state.
Hosko said he also doesn’t think such a reopened probe serves a purpose, as the goal should be examining the conduct of the FBI and Justice Department rather than reopening a politically charged matter.
“What Hillary Clinton did in ignoring the security requirements and the arrogance of it all was an outrageous failure on the part of the State Department, but we have statutes of limitations and we have elections,” he said, adding:
If the statute of limitations has been reached for her offense, she can’t be prosecuted. Also, the people spoke and she was not elected. The value of proceeding in a prosecution has no other value beyond a political value of those who want to see the Clintons get what’s coming to them.
I think the Clintons are corrupt to the core, but the FBI and Justice Department have limited resources. Nothing is to be gained by going after Hillary Clinton at this point.
However, Judicial Watch President Tom Fitton contends the likely findings of a “mangled” investigation should require a legitimate new probe of what Clinton did.
“I don’t know that the Justice Department will do it,” Fitton told The Daily Signal. “The sham nature and politicization of the FBI’s investigation covered up the big issue of criminal conduct from Secretary Clinton. The IG report may force a reopening of the investigation.”
The time limit for a charge of obstruction of justice and for prosecuting someone for disclosure of classified information is 10 years, according to a Congressional Research Service report. There is no limitation for prosecuting someone for espionage, according to the website StatuteOfLimitation.info.
“There could be enough to prompt reopening the email probe that would focus on obstruction of the investigation itself and also the Espionage Act,” Powell said. “The statute of limitations for the Espionage Act would be longer.”
3. Could Comey Be Prosecuted?
On the flip side, if the Clinton probe were reopened it would be the third go-round.
The inspector general’s report is expected to strongly criticize Comey for publicly announcing on July 5, 2016, that he wouldn’t recommend charges against Clinton, while at the same time attacking Clinton, the Democrats’ presidential nominee, for being reckless.
The report also is expected to fault Comey for publicly reopening the investigation briefly just days before the Nov. 8 election.
“This should answer how the investigation into Hillary Clinton’s email was handled or mangled, and it should have something for both sides,” Fitton said, noting that Clinton defenders blame Comey for her loss in the 2016 election.
The report should address deeper concerns about how Comey followed Justice Department procedures and traditions to avoid affecting an election, Hosko said.
“It will be critical of James Comey for being publicly critical of Hillary Clinton and also usurping the role of federal prosecutors,” Hosko said of the IG report. “I hope this gives us clarity into whether James Comey was biased—and I believe the answer was no—or whether Comey was faced with bad choices—all of which had a political impact—and picked the best of bad choices.”
One of Trump’s personal lawyers, Rudy Giuliani, said in a radio interview that the inspector general’s report could lead to a prosecution for Comey.
“I think the report of Horowitz … and the Justice Department will confirm that Comey acted improperly with regard to the Hillary Clinton investigation,” Giuliani, a former New York mayor, said. “The first thing we are going to get is a report from Inspector General Horowitz on Comey’s handling of Hillary, which I think is going to be very, very critical of Comey, as it should be.”
“Comey, really, has a chance of being prosecuted as a result of [the IG report], but we’ll see.”
Trump fired Comey in May 2017. The president initially said he acted on the recommendation of Deputy Attorney General Rod Rosenstein, who criticized Comey’s handling of the Clinton probe in a memo.
However, Trump later said “the Russia thing” was a consideration in firing Comey. Attorney General Jeff Sessions had recused himself from all aspects of that probe because of his own advisory role in the Trump campaign, and Rosenstein appointed Mueller as special counsel to pursue the Russia questions.
4. What About the Clinton-Lynch Tarmac Meeting?
In his book, “A Higher Loyalty: Truth, Lies, and Leadership,” and in congressional testimony and interviews, Comey said he felt compelled to make the public announcement in July 2016 about not prosecuting Clinton because of Lynch’s actions as attorney general.
First, Comey said Lynch had asked him to publicly refer to the Clinton email inquiry as a “matter” and not a “probe” or “investigation.”
After that, Lynch met with former President Bill Clinton, husband of the Democratic candidate, after he boarded Lynch’s plane at an airport in Phoenix. The two said they discussed their grandchildren, but the fact that the influential spouse of someone under investigation had talked privately to the attorney general raised suspicions.
Comey asserted that he had doubts about the Justice Department’s impartiality, and said he thought he had to thoroughly explain in public why the government should not bring charges against Clinton.
“This will look into Loretta Lynch’s meeting with Bill Clinton on the tarmac, and what role that played in Comey’s announcement,” Hosko said. “This should explain how she recused herself and assert the role federal prosecutors play.”
While the FBI has taken a public relations beating, Hosko said he suspects it was the Justice Department that forced any politicization of the probe.
“I want to know the degree of resources and support federal prosecutors provided for the FBI in the investigation of Hillary Clinton’s email,” Hosko said.
He said he also is interested in why the Justice Department at least seemed less aggressive toward Hillary Clinton than it was about low-level Trump campaign aides Carter Page and George Papadopoulos, who came under scrutiny in 2016.
“FBI agents are apolitical. They are not supposed to make decisions based on, ‘I don’t like this Clinton woman,’ or ‘I don’t like this Trump guy.’ I hope the FBI is vindicated,” Hosko said.
“But I do want to see why the Justice Department didn’t provide the same level of resources for the Clinton investigation it has for the Mueller probe, and before that, the investigation of Carter Page and George Papadopoulos.”
5. If the First Probe Was Suspect, Why Trust This One?
It will be up to the public, politicians, and the press to opine on whether the inspector general’s findings are above reproach or just more politics. Despite the apolitical nature of an inspector general, it’s not likely any conclusion will be universally accepted.
Among many post-Watergate reforms was the Inspector General Act of 1978, passed by Congress and signed by President Jimmy Carter.
Congress passed the law to recognize that the federal government can’t investigate itself. Each major government department has its own inspector general’s office.
While Horowitz–an Obama appointee–has been lauded by Democrats and Republicans over the years, no government bureaucracy warrants complete faith, said Fitton, head of Judicial Watch, a conservative government watchdog.
“IG reports are political like any other government agency report,” Fitton said. “It is another bureaucracy. IG reports can be hit and miss. Taxpayers should hold on to their wallets whenever they hear that someone is well respected in Washington.”