The
reputation of the Federal Bureau of Investigation took another pummeling in
June, when the Department of Justice Inspector General released a damning
report on the FBI’s investigation of Hillary Clinton’s squirrely email server.
Americans learned that the FBI had done backflips to exonerate Clinton and that
a top FBI official had openly promised to “stop” Donald Trump from becoming
president. The IG report proves that it is time for a sweeping independent
investigation of the FBI’s abuses of Americans’ rights and liberties.
The
FBI’s investigation of Clinton was spurred by her decision to set up a private
server to handle her email during her four years as Secretary of State. The
server in a bathroom of her Chappaqua, New York, mansion was insecure and
exposed emails with classified information to detection by foreign sources and
others.
Clinton
effectively exempted herself from the federal Freedom of Information Act
(FOIA). The State Department simply ignored 17 pre-2014 FOIA requests for
Clinton’s emails. State delayed for more than five years answering a simple
request from the Associated Press for Clinton’s schedules and meetings. The
agency insisted that it would require 75 years to disclose emails of Hillary’s
top aides. A federal judge and the agency’s Inspector General slammed the FOIA
stonewalling and foot-dragging.
Clinton’s
private email server was not publicly disclosed until she received a
congressional subpoena in 2015. A few months later, the FBI Counterintelligence
Division opened a criminal investigation examining the “potential unauthorized
storage of classified information on an unauthorized system,” as one agent
declared. The IG report recaps how Attorney General Loretta Lynch swayed FBI
Director James Comey to mislead the public by denying that a criminal
investigation involving Hillary Clinton had commenced; instead, it was referred
to simply as a “matter.”
The
“investigation” (1)
The IG
report gives the impression that the FBI treated Hillary Clinton and her
coterie like royalty — or at least like personages deserving endless deference.
When Bleachbit software or hammers were used to destroy email evidence under
congressional subpoena, the FBI treated it as a harmless error. The IG report
“questioned whether the use of a subpoena or search warrant might have
encouraged Clinton, her lawyers … or others to search harder for the missing
devices [containing email], or ensured that they were being honest that they
could not find them.” Instead, FBI agents worked on “rapport building” with
Clinton aides.
The
report noted, “We found [Paul Combetta’s] actions in deleting Clinton’s emails
in violation of a Congressional subpoena and preservation order and then lying
about it to the FBI to be particularly serious. We asked the prosecutors why
they chose to grant him immunity instead of charging him with obstruction of justice,
in violation of 18 U.S.C. § 1505, or making false statements, in violation of
18 U.S.C. § 1001…. [They] believed prosecuting Combetta would not ‘serve a
federal interest.’” This was one of many twists in the investigation vivifying
that truth was not a “federal interest.”
FBI
investigators even shrugged off brazen deceit. An unnamed FBI agent on the case
(identified in the report as “Agent 1”) responded to a fellow FBI agent who
asked how an interview went with a witness who worked with the Clintons at
their Chappaqua residence: “Awesome. Lied his ass off. Went from never inside
the scif [sensitive compartmented information facility] at res [residence], to
looked in when it was being constructed, to removed the trash twice, to
troubleshot the secure fax with HRC a couple times, to everytime there was a
secure fax i did it with HRC. Ridic.” When his colleague replied that it “would
be funny if he was the only guy charged n this deal,” Agent 1 replied, “aint no
one gonna do sh–” with respect to filing charges.
A top
FBI agent groused that, from the beginning, the Clinton investigation showed
“no control and horrible decisions and chaos on the most meaningless thing I’ve
ever done with people acting like f*** 9/11.” Four months later, he groused
about “alot of work and bullsh– for a political exercise.” He later messaged
colleagues about “a sh–ty task, in a sh–ty environment. To look for something
conjured in a place where you cant find it, for a case that doesnt matter and
is predestined…. DOJ comes in there every once in awhile and takes a
wishy-washy, political, cowardice stance.”
Rep.
Trey Gowdy (R-S.C.) complained that FBI investigators treated Clinton and her
associates far more leniently than they have Trump campaign officials:
“Voluntariness and consent in the former were replaced with search warrants,
subpoenas, and other compulsory processes in the latter. Many of the
investigators and supervisors were the same in both investigations but the
investigatory tactics were not.”
The FBI
apparently failed to make any audio or video recordings of its interviews with
Clinton aides and staffers. Perhaps the most frequent phrase in the IG report
is “According to the FD-302 …” This refers to the memo an FBI agent writes
after interviewing targets or witnesses in an investigation. Relying on Form
302s (instead of recording interviews) maximizes the discretion of FBI
officials, allowing them to frame issues or create a narrative or buttress
charges of lying to a federal agent. FBI officials have been accused of using
302s to fabricate evidence of criminal wrongdoing. (The FBI’s refusal to
tape-record interviews or confessions is increasingly harming its credibility
with juries, partly explaining the sharp fall in the number of FBI referrals
that produce convictions.)
The
“investigation” (2)
The FBI
waited until the end of the investigation to interview Clinton and had decided
to absolve her “absent a confession from Clinton,” the IG report noted. There
was no recording and no transcript; instead, a 302 report allowed FBI Director
James Comey to proceed with the pre-ordained “not guilty” finding. Clinton had
received numerous classified emails (some of which were marked with a “C”) on
her private email server. The IG report notes, “According to the FD-302 from
Clinton’s interview, Clinton told the FBI that she did not know what the ‘(C)’
meant and ‘speculated it was a reference to paragraphs ranked in alphabetical
order.’”
The IG
noted, “Witnesses told us, and contemporaneous emails show, that the FBI and
Department officials who attended Clinton’s interview found that her claim that
she did not understand the significance of the ‘(C)’ marking strained
credulity. [FBI] Agent 1 stated, ‘I filed that in the bucket of hard to
impossible to believe.’” Comey told IG investigators that “by her demeanor, she
was credible and open and all that kind of stuff.” But a video recording of the
showdown would have been invaluable to Americans who doubted Clinton and the
FBI. One of the FBI agents who interviewed Clinton texted to a colleague
afterwards that he was “done interviewing the President,” as if the FBI assumed
her election was a foregone conclusion. Prior to the interview, Lisa Page, a
top FBI attorney texted her colleagues, “She might be our next president. The
last thing you need [is] us going in there loaded for bear.”
The IG
report deals briefly with a kerfuffle over the FOIA release of Clinton
Foundation documents a week before the 2016 election. Regrettably, the IG
overlooked the FBI’s horrendous record on FOIA compliance; even former FBI
Deputy Director Andrew McCabe now bewails that the FBI is a perpetual FOIA
violator. A federal judge slammed the agency for claiming it would require 17
years to fulfill a FOIA request on surveillance of anti-war activists in the
1960s. The FBI also makes ludicrous redactions to FOIA releases — such as
deleting the names of Clark Kent and Lois Lane from a theatrical adaptation
of Superman because disclosing them would “constitute a
clearly unwarranted invasion of personal privacy.”
Anti-Trump
texts spurred the IG to refer five FBI employees to the FBI for possible
disciplinary penalties. “We’ll stop” Donald Trump from becoming president, lead
FBI investigator Peter Strzok texted his mistress/girlfriend, FBI lawyer Lisa
Page, in August 2016. One FBI agent labeled Trump supporters as “retarded” and
declared “I’m with her” [Hillary Clinton]. Another FBI employee texted that
“Trump’s supporters are all poor to middle class, uneducated, lazy POS.” One
FBI lawyer texted that he was “devastated” by Trump’s election and declared
“Viva la Resistance!” and “I never really liked the Republic anyway.” The same
person was the “primary FBI attorney assigned to [the Russian
election-interference] investigation beginning in early 2017,” the IG noted.
A
real investigation
The IG
report shows how unjustified secrecy and arbitrary power helped ravage the
credibility of Hillary Clinton’s presidential campaign and the FBI, and it
spurred predictable demands that the FBI must behave in a strictly nonpartisan
manner. That is an ideal that is likely to be realized nowhere except in
newspaper editorials. The sweeping discretionary power the FBI captures from
enforcing thousands of federal criminal laws is destined to be abused.
The
first step to reining in the FBI is to open the agency’s files. Oversight is
often a mirage, thanks to FBI spurning of congressional subpoenas and other
information demands. Federal judges have been riled by FBI false testimony and
withholding of evidence in major court cases ranging from Ruby Ridge and Waco,
to the Orlando Pulse massacre and the Bundy Ranch showdown. The FBI has
perennially exempted itself from the Freedom of Information Act.
It has
been more than 40 years since a Senate committee (headed by Frank Church) had
the gumption and the sway to reveal the stunning details and breadth of FBI
misconduct. It is time for another independent investigation with the courage
and the clout to compel full disclosure from the most powerful domestic
government agency. Investigators should receive all the crowbars they need to
pry open FBI records.
Democracy
is a mirage when governments blindfold citizens. Fifty-four years ago, the
Supreme Court declared that “one person, one vote” is the law of the land. But,
as the IG report is likely to show, the new de facto standard for American
elections is “one agency, one veto” — at least regarding bureaucrats’ right to
pull strings to favor a candidate.
The
Founding Fathers never intended a secret police force to be an independent
fourth branch of the federal government. As James Madison warned in 1788,
“Wherever the real power in a Government lies, there is the danger of
oppression.” And as Secretary of State Hillary Clinton wisely warned in 2012,
“Lack of transparency eats away like a cancer at the trust people should have
in their government.”
This post was written by:James Bovard
James Bovard is a policy
adviser to The Future of Freedom Foundation. He is a USA Todaycolumnist
and has written for The New York Times, The Wall Street Journal, The
Washington Post, New Republic, Reader’s Digest, Playboy, American Spectator,
Investors Business Daily,and many other publications. He is the author
of Freedom Frauds: Hard Lessons in American Liberty (2017,
published by FFF); Public Policy Hooligan (2012); Attention
Deficit Democracy(2006); The Bush Betrayal (2004); Terrorism
and Tyranny (2003); Feeling Your Pain (2000); Freedom
in Chains (1999); Shakedown (1995); Lost
Rights (1994); The Fair Trade Fraud (1991); and The
Farm Fiasco (1989). He was the 1995 co-recipient of the Thomas Szasz
Award for Civil Liberties work, awarded by the Center for Independent Thought,
and the recipient of the 1996 Freedom Fund Award from the Firearms Civil Rights
Defense Fund of the National Rifle Association. His book Lost Rights received
the Mencken Award as Book of the Year from the Free Press Association.
His Terrorism and Tyranny won Laissez Faire Book’s Lysander
Spooner award for the Best Book on Liberty in 2003. Read his blog. Send him email.