Congressional investigators were rocked this weekend when the FBI notified them that five months of text messages from a top FBI investigator into the Trump campaign’s Russian connections had mysteriously vanished.
The FBI-issued cell phone of Peter Strzok, whose previous texts to his mistress (also an FBI employee) showed fierce hostility to Trump, suddenly had problems due to “software upgrades” and other issues — and voila — all the messages between the two from Dec. 14, 2016, to May 17, 2017 vanished. Strzok, who oversaw the Trump investigation from its start in July 2016, was removed from Mueller’s Special Counsel investigation last summer after the Justice Department Inspector General discovered his anti-Trump texts.
Stephen Boyd, the assistant attorney general for legislative affairs, notified a Senate committee that “data that should have been automatically collected and retained for long-term storage and retrieval was not collected.” The missing texts could have obliterated the remnants of credibility of the FBI’s investigation of the Trump campaign.
Conservatives are caterwauling about the vanished evidence but this type of tactic has long been standard procedure for the FBI. Acting FBI chief Patrick Gray was forced to resign in 1973 after it was revealed that he had burned incriminating evidence from the White House in his fireplace shortly after the Watergate break-in by Nixon White House “plumbers.” Gray claimed he was resigning to preserve the “reputation and integrity” of the FBI — but that hasn’t worked out so well.
The FBI has a long history of “losing” evidence that would tarnish its halo. And for most of the agency’s history, judges and Congress have let the FBI sweep its dirt under the rug.
In the Ruby Ridge case, when an FBI sniper gunned down an Idaho mother holding her baby in 1992, the chief of the FBI’s Violence Crimes division was sent to prison for destroying evidence. When a Senate committee held hearings three years later, four FBI agents took the Fifth Amendmentrather than tell the incriminating truth about their activities on the Ruby Ridge case. A subsequent Senate report concluded that the five successive FBI reports of internal investigations of the episode "are variously contradictory, inaccurate, and biased. They demonstrate a reluctance on the part of the FBI initially to take the incidents at Ruby Ridge seriously.” Sen. Herbert Kohl (D-Wis.) complained, "I would be asked by the FBI to believe (Ruby Ridge) was almost a model of (good) conduct. The conclusion, is drawn, from ... all the people we've heard, that no one did anything wrong of significance or consequence."
The FBI suppressed mounds of evidence regarding its final assault on the Branch Davidians in Waco, Texas, on April 19, 1993. The FBI had always vehemently denied that it had any blame for a fire that killed nearly 80 people; six years after the attack, investigators found pyrotechnic rounds the FBI fired into the building before the conflagration erupted. Attorney General Janet Reno lashed out at the FBI for destroying her credibility.
Newsweek reported that, according to a senior FBI official, “as many as 100 FBI agents and officials may have known about” the military-style explosive devices used by the FBI at Waco, despite Reno’s and the FBI’s repeated denials that such devices were used. The FBI deceived Congress and a federal judge by withholding information that it had six closed-circuit television cameras monitoring the Davidians’ home throughout the siege. The resulting films could have the key information that could resolve the major issues of Waco but the FBI withheld the tapes for years, until they were impounded by U.S. marshals.
FBI evidence shenanigans destroyed the prosecution of Cliven Bundy, the Nevadan rancher who was involved in a high-profile standoff with federal agents in 2014. The feds charged the Bundy family with conspiracy in large part because the ranchers summoned militia to defend them after they claimed that FBI snipers had surrounded their ranch. Justice Department lawyers scoffed at this claim in prior trials involving the standoff but newly-released documents confirm that snipers were in place prior to the Bundy’s call for help. Federal judge Gloria Navarro slammed the FBI last month for withholding key evidence in the case.
Evidence disposal is no problem for politically-favored targets of FBI investigation. A month before the 2016 election, Americans learned that the FBI agreed to destroy the laptops of top Hillary Clinton aides after a limited examination of their contents (including a promise not to examine any emails or content after January 31, 2015) in its investigation of Hillary Clinton’s private email server. Four Republican congressional committee chairmen complained to Attorney General Lynch that the FBI agreement was " simply astonishing given the likelihood that evidence on the laptops would be of interest to congressional investigators.” The FBI shrugged off the Clinton team’s subsequent use of bleachbit software to erase thousands of her emails. Jeff Sessions, who was then a U.S. senator and is now Attorney General, condemned the FBI’s behavior as “breathtaking:”
“I really don’t see how Congress can issue a subpoena for records and they then destroy those records. I am telling you that every business knows that if they get a subpoena for business records, and they destroy those records, they are subject to criminal prosecution and will be prosecuted.”
Will the FBI face any consequences for its latest lost evidence debacle? In our high-tech era, it is no longer necessary to toss damning evidence into a fireplace. “Software upgrades” sounds so innocuous that only conspiracy theorists could wonder about missing smoking guns. But the FBI is no closer to being compelled to operate openly than when Patrick Gray ignited those White House files.
James Bovard is a USA Today columnist and the author of 10 books, including “Lost Rights: The Destruction of American Liberty” (St. Martin’s Press, 1994).