The FBI Was Accused of Bias—and Its Response Helped Tip the Election

Public statements from former FBI Director James Comey, as well as an internal investigation focusing on former FBI Deputy Director Andrew McCabe, have shed light on the extent to which leaks from the Bureau influenced a series of late-October decisions that damaged Hillary Clinton’s chances in the 2016 election.

Pressure from the FBI officials investigating the Clinton Foundation, who leaked their frustrations to the press, affected both Comey’s decision to make his late-October announcement that the Clinton email probe had been reopened, and according to the Department of Justice Inspector General, McCabe’s decision to publicly confirm the existence of the Clinton Foundation probe to The Wall Street Journal. Both decisions were made under a torrent of conservative criticism, from Trump himself, who called the Clinton email inquiry “rigged,” and from the conservative press, which speculated that the Bureau was deliberately going easy on Clinton.

In each case, FBI officials violated Justice Department policy against disclosing sensitive information about investigations close to an election, and in each case they did so to the disadvantage of the Democratic candidate, while the investigation into the Trump campaign’s ties to Russia remained safely confidential. In aggregate, those choices produced a series of disclosures by FBI officials that were politically damaging for Clinton, even as the Bureau held its silence about its investigation of whether the Trump campaign was aiding an influence operation carried out by a hostile foreign power.

Late in the 2016 race, it became clear that sources within the FBI were talking to people on the outside about Clinton. The motives of those sources remain unknown—they might have been political partisans, but they also might simply have been frustrated agents who felt their case wasn’t being taken seriously. Former Bureau personnel stress that most agents do not see their jobs as political and would not consciously act in a partisan fashion.

In one particularly memorable example, on November 4, Trump surrogate Rudy Giuliani told Fox News part of the reason for Comey’s announcement was that “there’s a revolution going on inside the FBI and it’s now at a boiling point,” and that “I know that from former agents. I know that even from a few active agents.”

“It was clear even at the time that the leaks put pressure on Comey to say something. Now he has hinted at that. He ought to just say so explicitly: He, and our democratic process, were hijacked by Trump-supporting FBI agents who disrespected the rule of law,” Bruce Green, a former federal prosecutor and a law professor at Fordham University, said. “Against that background, any claim that the FBI is somehow out to get the current administration ought to ring hollow.”    

On Sunday night, in an interview with ABC News’s George Stephanopoulos, Comey acknowledged that leaks regarding the Clinton Foundation investigation affected his calculus in deciding whether or not to announce that the email probe had been reopened later in the race.

“I knew that there were leaks coming—or appeared to be leaks about criminal investigation of the Clintons coming out of New York,” Comey told Stephanopoulos, arguing that criminal investigators are traditionally less circumspect than counter-intelligence agents. “Once you start involving people whose tradition is criminal, and in New York which has a different culture, there is a reasonable likelihood it was going to get out anyway.”

Mike German, a former FBI agent and a fellow at the Brennan Center, said Comey’s explanations for his decision made little sense. “If you’re afraid that there’s something that is going to look like it could be politicized, what you do is make sure you’re following all the rules and adhering to procedures that were normal,” German said. “As soon as you start manipulating and applying different rules, you politicize it. There’s no getting around that.”

German added that Comey’s decision made matters worse. “It would have been a lot easier just to go up to New York and hold everybody responsible for what they’re doing rather than completely undermining all the Justice Department regulations, in order to do something extraordinary that does just as much damage as the leak does,” German said. “The cure is worse than the illness.”

The Inspector General’s report on McCabe, which was released on Friday, portrays similar pressure contributing to McCabe’s decision to offer The Wall Street  Journal information that publicly confirmed the Clinton Foundation probe. McCabe has portrayed his actions as defending the Bureau against a false narrative that the Clinton Foundation probe was being shut down.

The IG report concluded the former deputy director lacked candor in his conversations with internal investigators about his decision to provide a Journalreporter with knowledge of a phone call in which McCabe accused a senior Justice Department official of trying to slow-walk the Clinton Foundation investigation. “We are mindful that McCabe was responding to anonymous, unauthorized leaks about the CF Investigation that may have originated from current or former FBI agents,” the report reads, but that the leak “served only to advance McCabe’s personal interests and not the public interest, as required by FBI policy.” McCabe has denied misleading investigators.

That fact pattern establishes a clear story: Current or former FBI officials involved in investigating the Clinton Foundation apparently leaked information; Comey made his late-October announcement about the Clinton email investigation in part to get ahead of additional leaks; and McCabe publicly confirmed the existence of the separate Clinton Foundation investigation for similar reasons.

“The FBI agents had a legal and professional obligation to maintain the secrecy of the Clinton investigation,” Green said. “As law-enforcement agents, they, of all people, had an obligation to play by the rules. Violating their secrecy obligations in order to try to swing an election shows a fundamental lack of respect for the law.”

While the motivations of all of the actors here were not the same, their actions, in concert, may have substantially influenced the outcome of the 2016 presidential election.

“The pact that we as a democracy have with the FBI is that if you gather information that could make a person look bad, but isn’t illegal, you don’t talk about it, because otherwise you’re depriving that person of a chance to defend themselves,” German said. “It’s certainly inappropriate for anyone to leak information about a subject under investigation. We give the FBI extraordinary power to conduct investigations where they find criminal wrongdoing, and where they don’t find criminal wrongdoing, they shouldn’t say anything.”

Trump and his supporters have claimed for months that the federal law-enforcement and intelligence communities have engaged in a “deep state” conspiracy against him. But one by one, nearly all the elements of that charge have unraveled.

Trump claimed that Comey, who Trump fired because of the “Russia thing,” had it in for him. But Comey kept quiet about the Trump campaign investigation ahead of the 2016 election, while publicly disclosing that the FBI had reopened the Clinton email inquiry. Trump claimed that the Obama administration ordered surveillance of Trump Tower, an allegation that remains unsubstantiated. The conspiracy theory that FBI officials Lisa Page and Peter Strzok were behind an effort to leak damaging information about Trump was based on texts taken out of context. House Intelligence Committee chair Devin Nunes accused Obama administration officials of improperly “unmasking” the names of Trump officials during the transition, an accusation that other Republicans on the committee dismissed. Nunes then released a document accusing the FBI of basing the Russia investigation on an opposition research document commissioned by the firm Fusion GPS and compiled by the former British intelligence agent Christopher Steele, only to be forced to admit that the investigation began months earlier with the Trump campaign adviser George Papadopoulos. Trump publicly fixated on McCabe as a likely Clinton partisan, but McCabe, like Comey, violated Justice Department standards to Trump’s benefit when he publicly confirmed the existence of the Clinton Foundation probe late in the election.

“I know everybody wants to think that it happened because the people who leaked it were Clinton-hating Republicans, and that may be part of it, and it may also be agents who were disgruntled because they aren't being allowed to pursue a case that prosecutors think has no merit," said Matt Miller, a former Justice Department spokesman under Attorney General Eric Holder. “I think most FBI agents are probably Republicans, and most prosecutors are probably Democrats, but I don't think either of them make decisions based on politics.”

Virtually the only claim of the Trump “deep state” conspiracy remaining is the existence of the investigation itself, a notion premised on the total innocence not just of the president, but of his inner circle, including those who have already been indicted or pleaded guilty, one that is impervious to contrary evidence.

“Prosecutors and FBI agents are out to prove criminality. And if agents on this case believe the president has committed a crime, yes, they’ll be out to prove it. But that’s their job,” Miller said. “I don’t think it’s the case that FBI agents came to this case with a bias against him.”

In the meantime, the more that has been disclosed about the FBI’s conduct in the waning days of the 2016 election, the clearer the Bureau’s role has become. Elements of the nation’s premier law-enforcement agency, acting out of a variety of motives, injured not Trump’s candidacy, but that of his opponent. For all Trump’s complaints about the FBI, without the intervention of members of both the FBI rank-and-file and Bureau leadership, he might still be living in Trump Tower.