Government Watchdog Launches Probe Into FBI, Justice Actions in Clinton Email Case

Another bombshell just dropped into President-elect Donald Trump’s bumpy transition as the Justice Department’s inspector general announced Thursday his office will investigate the FBI’s actions in “advance of the 2016 election.”

During the presidential campaign, Democratic nominee Hillary Clinton’s campaign was dogged by a consistent drip of information and allegations about her use of a private email server while secretary of state. FBI Director James Comey personally testified before Congress in July that Clinton and her aides had been “extremely careless” but he had found no basis for criminal charges related to the email practice. Later, just weeks before the election, Comey sent out a letter announcing another review, before ultimately telling Congress — two days before the election — that the FBI hadn’t changed its conclusions not to bring charges.

Department of Justice Inspector General Michael E. Horowitz announced his office was initiating the review in response to “numerous” requests from the chairmen and ranking members of Congressional oversight committees, as well as other organizations and the public.

The Clinton campaign had railed against Comey’s actions so close to the election, blaming the flare-up of the controversy in part for her defeat. Clinton herself said after the election “our analysis is that Comey’s letter raising doubts that were groundless, baseless, proven to be, stopped our momentum.”

Horowitz noted the investigation won’t affect any of the Justice Department or FBI’s conclusions about Clinton’s emails. Both Comey’s announcements — and now Horowtiz’s — are extremely rare in breaking with department policy that broadly prohibits referring to investigations or appearing political.

“The review will not substitute the OIG’s judgement for the judgements made by the FBI or Department regarding the substantive merits of investigative or prosecutive decisions,” the Thursday announcement said.

The investigation will dig into allegations that Comey and the FBI didn’t follow proper procedure in the July announcement or subsequent letters this fall, “and that certain underlying investigative decisions were based on improper considerations.” The probe will also look into whether the bureau improperly disclosed non-public information, and whether Deputy FBI director Andrew McCabe, whose wife ran as a Democrat in Virginia for the state senate, should’ve recused himself. Lastly, the IG will assess whether the timing of an information dump pursuant to a Freedom of Information Act request just a week before Election Day — and tweets publicizing the drop — was effectively political.

As for the Justice Department, the investigation will look into whether the department’s Assistant Attorney General for Legislative Affairs, Peter J. Kadzik, “improperly disclosed non-public information to the Clinton campaign,” or similarly should’ve recused himself.

An email released by Wikileaks on Nov. 2 appeared to show Kadzik giving Clinton campaign chairman John Podesta a “heads up” about the State Department’s review of Clinton’s emails. The exchange was one of tens of thousands of Podesta’s emails published by Wikileaks in the runup to the election.

The latest announcement from the Justice Department inspector general comes before Trump takes office next Friday, adding to the swirl of controversy over the election, the role played by Russia, and the possible role that Justice Department investigations into candidates may have had on the outcome. Last week, the intelligence community briefed both the president-elect and President Obama on allegations suggesting Trump had been compromised by Moscow, including an explosive but unsubstantiated dossier.

Such inspector general investigations can last months or even years, and could end fully exonerating current leadership, in a formal reprimand, or with stronger repercussions. Horowitz has the authority to recommend a criminal investigation, but there’s been no evidence any actions taken were unlawful.

The inspector general is an oversight position independent of both the department and the White House. Obama appointed Horowitz and the Senate confirmed him in 2012.

“No president can fire him,” a Justice Department employee told Foreign Policy Thursday.

But a spokesman for the Senate Judiciary said later that the DOJ IG does not have a term limit and can only be removed by the president — with notice to Congress — or by impeachment.

The move only adds to tension as Trump’s relationship with the intelligence community and FBI has turned south in light of the latest reports, with the president-elect comparing them to Nazis and vowing a government investigation to pursue leakers. James Clapper, the director of national intelligence, told Trump Wednesday that the leaks were regrettable and did not come from the U.S. intelligence community.

Horowitz too has had run-ins with the FBI and the broader Justice Department. He wrote to Congress in February, 2016, with claims the bureau was stonewalling his investigations and routinely blocking access to records. He’s also in the middle of an intra-government fight over access to records for inspectors general. Last month, Obama signed legislation granting new legal protections to inspectors general for federal agencies.

As the Republican nominee, Trump consistently and gleefully hit the issue of Clinton’s email use, suggesting it was a serious security risk. He argued that a brief June meeting on the tarmac between Attorney General Loretta Lynch and former President Bill Clinton was inappropriate and may have weighed Lynch’s conclusion in early July not to pursue any charges in relation to the emails.

The Justice Department for its part had strongly urged Comey against bucking protocol and revealing the investigation — much less providing details about it – in late October. But Comey had also been battling warring leaks from within his department.

Comey, on the Hill this week for more briefings about the Russian campaign to undermine the election, refused to say whether the FBI is investigating Trump’s ties to Russia, in contrast to his willingness to talk about details of the Clinton investigation.

“I would never comment on investigations, whether we have them or not, in an open forum like this,” he said.

This story has been updated with clarification from the Senate Judiciary Committee. 

Photo Credit: Win McNamee / Staff