Justice Watchdog’s Bombshell Report Underlines Tricky Role of IGs

Thursday’s much-anticipated Justice Department watchdog report on the FBI’s handling of the 2016 election probes is unusual as a high-profile Rorschach test for partisans with opposite views.  

But the 500-page opus based on more than 100 interviews and a review of 1.2 million documents is highly typical of an inspector general’s approach in that it lays out methodology using dispassionate prose and a built-in allowance for those individuals accused of misdeeds to respond to a draft of the report.  

Because IGs pride themselves as nonpolitical and independent of their home agencies, Justice IG Michael Horowitz—who doubles as chairman of the inspectors general council—may take pride in the fact that his report drew praise and was cited by partisans on both sides of the controversial 2016 election.

The wide-ranging report puts Horowitz at the center of the Washington spotlight, where he will remain for weeks to come.

The IG staff’s year-old examination of the FBI and the Justice Department’s long-analyzed handling of the probe into Democratic presidential candidate Hillary Clinton’s past use of a private email server blasted—as many predicted—since-fired FBI Director James Comey for violating department guidelines that forbid discussing the state of investigations in ways that could influence elections. It criticized a pair of FBI special agents for displaying political bias in private text messages during election season. And it examined the FBI’s prosecutorial tactics—its properly limited reliance on subpoenas and other non-voluntary methods for inducing testimony—and concluded that the bureau acted properly and within guidelines.

 “I think Horowitz finessed the great risks present in the task,” said Paul C. Light, a professor of public service at New York University who has long studied inspectors general. “Trump won't be sleeping well tonight, and Comey's book sales may go down. But that's the nature of the job and the dictates of the findings. Horowitz did exactly what the best IGs do—stay the course, do the job and speak clearly without hesitation. It's a good outcome for the OIG community.” 

The IG staff stressed that “in undertaking our analysis, our task was made significantly more difficult because of text and instant messages exchanged on FBI devices and systems by five FBI employees involved in the Midyear investigation. These messages reflected political opinions in support of former Secretary Clinton and against her then political opponent, Donald Trump.” Even more challenging, the report said, “most of the text messages raising such questions pertained to the Russia investigation, which was not a part of this review.”

The decision by Comey to speak publicly and in an opinionated manner of the Clinton probe (in July and again in October 2016) but not of the Trump probe that has since mushroomed has angered partisans on both sides.

But the IG report also found that the misconduct of Comey and the special agents was not borne of political bias and did not alter the outcome of investigations.

The report, originally promised for March, was delayed repeatedly, most recently, according to reports from Capitol Hill, by President Trump’s desire to see an advance copy of the report on Thursday morning, accompanied by a White House lawyer.

“The Office of the Inspector General’s regular practice is to provide the final version of every report to the Justice Department’s leadership the day before the public release so that they can make preparations within the Executive Branch,” Justice IG spokesman John Lavinsky said in a statement to Government Executive, stressing that Horowitz himself did not brief Trump. “On occasion, we provide briefings immediately before a report’s public release to Congress and then to the media.  For the Justice Department to brief the White House in the same manner and at the same time as the OIG briefs Congress and the press is consistent with this process, and has occurred in connection with prior OIG reports, such as our report” on the Bureau of Alcohol, Tobacco, Firearms and Explosives 2010 gun-walking probe called Operation Fast and Furious.  “No changes are made to the OIG’s report on account of these briefings. “

Earl Devaney, the retired inspector general for the Interior Department, said he had never before heard of a president reading an IG report in advance. “It’s an extraordinary event, but that doesn’t mean there’s anything wrong with it,” he told Government Executive on Thursday. Typically, IGs work through the Office of Management and Budget’s deputy director for management, he noted, but the president is that person’s boss.

Trump’s advance look is “unusual if Trump was the only one to get a first read,” Light said. “It would have been appropriate to share it with congressional leaders and Attorney General Jeff Sessions, too. It’s not improper per se, but it does create the impression that Trump was the boss. He can fire Horowitz, of course, but the OIGs belong to Congress and the president.”

Much of the report deals with the FBI’s handling of witnesses and its degree of coordination and consultation with Justice in following guidelines. “The question we considered was not whether a particular investigative decision was the ideal choice or one that could have been handled more effectively,” the report said, “but whether the circumstances surrounding the decision indicated that it was based on considerations other than the merits of the investigation.  If a choice made by the investigative team was among two or more reasonable alternatives, we did not find that it was improper even if we believed that an alternative decision would have been more effective.”

As is typical, the IG report made recommendations for Justice, in this case nine, while referring five individuals for discipline. The remedies include creating stronger guidelines to lessen the chances that an investigating agency announces or discloses the status of a probe of individuals “that could impact an election.” It recommended better training of FBI agents in media contact and the use of text and instant messages on official devices. And finally, in a reference to fired former FBI Deputy Andrew McCabe, whose wife briefly sought a Virginia state Senate office as a Democrat, the IG recommended that “department ethics officials consider implementing a review of campaign donations when department employees or their spouses run for public office.” (Horowitz had issued a separate report on McCabe earlier, accusing him of misleading FBI investigators.)

FBI Director Christopher Wray agreed with the recommendations and promised quick action. “The FBI accepts the OIG’s findings that certain text messages, instant messages and statements, along with a failure to consistently apply DoJ and FBI interview policies, were inappropriate and created an appearance that political bias might have improperly influenced investigative actions or decisions. The bureau also agrees with the OIG that, despite these errors and the damage they may have caused to the FBI’s reputation, there was no evidence of bias or other improper considerations affecting the handling of the Midyear Exam investigation.”

Wray also commented on his predecessor’s status: “The OIG found that former Director Comey was insubordinate when he intentionally concealed from DOJ his intentions regarding the July 5, 2016, announcement [that Clinton would not be indicted] and instructed his subordinates to do the same,” he wrote to the IG. “The FBI does not condone insubordination at any level and will institute training to ensure compliance with policy and the chain of command, as appropriate.”