Justice Watchdog Adds FBI Surveillance Issues to an Already Full Plate

Michael Horowitz, the Justice Department watchdog who doubles as chairman of the inspectors general council, has added a probe of the FBI’s use of the Foreign Intelligence Surveillance Act to his other politically controversial reviews of the bureau’s treatment of both the Donald Trump and Hillary Clinton campaigns during the 2016 elections.

In a Wednesday announcement and letter to Sens. Chuck Grassley, R-Iowa., and Lindsey Graham, R-S.C., Horowitz said he will “initiate a review that will examine the Justice Department’s and the Federal Bureau of Investigation’s compliance with legal requirements, and with applicable DOJ and FBI policies and procedures, in applications filed with the U.S. Foreign Intelligence Surveillance Court relating to a certain U.S. person.”

That person has been identified by lawmakers as businessman and former Trump campaign adviser Carter Page, whose activities with Russians had reportedly been under surveillance even before the 2016 campaign. “OIG also will review information that was known to the DOJ and the FBI at the time the applications were filed from or about an alleged FBI confidential source,” the watchdog wrote. “Additionally, the OIG will review the DOJ’s and FBI’s relationship and communications with the alleged source as they relate to the [foreign surveillance court] applications.”

The move—welcomed by Republican lawmakers but viewed with suspicion by some Democrats—comes just as FBI Director Christopher Wray announced on Tuesday that he was doubling the FBI staff devoted to responding to a House subpoena on documents related to the bureau’s surveillance court referrals and a new congressional review of former Secretary of State Clinton’s much-disputed use of a private email server.

Political observers on both ends of the spectrum are awaiting Horowitz’s larger probe of possible FBI and DOJ partisanship during the election, and his work played a role in the recent firing of former FBI acting Director Andrew McCabe.

Grassley welcomed the development. “I’m grateful that the nonpartisan inspector general is reviewing both the controversial FISA application and the FBI’s relationship with Christopher Steele, whose Clinton-funded work was used in the FISA application,” he said in a Wednesday statement. “The inspector general has a sterling reputation for getting the facts and holding any bad actors accountable,” Grassley said. We need to be sure that improper political influence, misconduct or mismanagement is never a factor when federal law enforcement seeks permission to secretly surveil Americans.”

House Judiciary Committee Chairman Bob Goodlatte, R-Va., was similarly welcoming of the development, but he—and Sen. Graham—said the move was insufficient. “This is not a substitute for a special counsel to investigate this and other matters, including decisions made and not made by the Justice Department in 2016 and 2017, and evidence of bias by DOJ and FBI employees in charging decisions,” said Goodlatte, who had teamed up with House Oversight and Government Reform Committee Chairman Trey Gowdy, R-S.C., this month to request Justice Department appointment of a second special counsel. “The IG’s office does not have authority to compel witness interviews, including from past employees, so its investigation will be limited in scope in comparison to a special counsel investigation.”

Late Thursday, Attorney General Jeff Sessions declined to appoint a second counsel.

A clashing view came from Rep. Jerrold Nadler, D-N.Y., ranking member of the Judiciary panel, who said, “It is a shame that the inspector general has to devote resources to investigate a conspiracy theory as fact-free, openly political, and thoroughly debunked as the president’s so-called ‘FISA abuse.’ Any objective review of these claims should tell us what we already know—that the FBI was right, that there was sufficient evidence to continue investigating certain Trump campaign officials for their connections to the Russian government, and that the Republicans are desperate to distract from that investigation,” Nadler added.

He called instead for hearings on the Trump administration’s criticisms of the FBI and on the larger topic of Russian meddling in U.S. elections, which lies at the root of the work of the existing Special Counsel Robert Mueller.

“The talking point going around about serious impropriety by the FBI in applications for FISA warrants merits come concern,” Liz Hempowicz, director of public policy for the nonprofit Project on Government Oversight, which tracks IGs’ work, told Government Executive. “But the IG has just started the review, so it seems calls for a second special counsel are premature. This seems exactly the kind of thing the Justice inspector general is there for.”

Paul C. Light, a professor of public service at New York University who has written widely on IGs, said, “For an IG to be effective, they’re going to be disliked. My question is whether Horowitz made the decision or whether he was forced to make it. As long as he made the decision I’m fine with it,” Light added. “There’s pressure on IGs’ to go one way or the other, and he’s got to protect his independence at all costs. But that doesn’t mean he should avoid controversies.