A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election

Oversight and Review Division 18-04 June 2018

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CONCLUSIONS AND RECOMMENDATIONS

1. Conclusions

The Clinton email investigation was one of the highest profile investigations

in the FBI’s history; however, it is just one of thousands of investigations handled each year by the approximately 35,000 FBI agents, analysts, and other professionals who dedicate their careers to protecting the American people and upholding the Constitution and the rule of law. Through the collective efforts of generations of FBI employees, the FBI has developed and earned a reputation as one of the world’s premier law enforcement agencies.

The FBI has gained this reputation, in significant part, because of its

professionalism, impartiality, non-political enforcement of the law, and adherence to detailed policies, practices, and norms. However, as we outline in this report, certain actions during the Midyear investigation were inconsistent with these longstanding policies, practices, and norms.

First, we found that several FBI employees who played critical roles in the

investigation sent political messages—some of which related directly to the Midyear investigation—that created the appearance of bias and thereby raised questions about the objectivity and thoroughness of the Midyear investigation. Even more seriously, text messages between Strzok and Page pertaining to the Russia investigation, particularly a text message from Strzok on August 8 stating “No. No he’s not. We’ll stop it.” in response to a Page text “[Trump’s] not ever going to become president, right? Right?!,” are not only indicative of a biased state of mind but imply a willingness to take official action to impact a presidential candidate’s electoral prospects. This is antithetical to the core values of the FBI and the Department of Justice. While we did not find documentary or testimonial evidence that improper considerations, including political bias, directly affected the specific investigative actions we reviewed in Chapter Five, the conduct by these employees cast a cloud over the entire FBI investigation and sowed doubt about the FBI’s work on, and its handling of, the Midyear investigation. It also called into question Strzok’s failure in October 2016 to follow up on the Midyear-related investigative lead discovered on the Weiner laptop. The damage caused by these employees’ actions extends far beyond the scope of the Midyear investigation and goes to the heart of the FBI’s reputation for neutral factfinding and political independence.

Second, in key moments, then Director Comey chose to deviate from the

FBI’s and the Department’s established procedures and norms and instead engaged in his own subjective, ad hoc decision making. In so doing, we found that Comey largely based his decisions on what he believed was in the FBI’s institutional interests and would enable him to continue to effectively lead the FBI as its Director. While we did not find that these decisions were the result of political bias on Comey’s part, we nevertheless concluded that by departing so clearly and dramatically from FBI and Department norms, the decisions negatively impacted the perception of the FBI and the Department as fair administrators of justice.

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Moreover, these decisions usurped the authority of the Attorney General and upset the well-established separation between investigative and prosecutorial functions and the accountability principles that guide law enforcement decisions in the United States.

As we further outline in this report, there was a troubling lack of any direct,

substantive communication between Comey and then Attorney General Lynch in advance of both Comey’s July 5 press conference and his October 28 letter to Congress. With regard to the July 5 events, Comey affirmatively concealed his intentions from Lynch. When he did finally call her on the morning of July 5—after the FBI first notified the press—he told her that he was going to be speaking about the Midyear investigation but that he would not answer any of her questions, and would not tell her what he planned to say. During that call, Lynch did not instruct Comey to tell her what he intended to say at the press conference. With respect to the October 28 letter, Comey chose not to contact Lynch or then Deputy Attorney General Yates directly; rather, he had FBI Chief of Staff Rybicki advise Yates’s senior advisor (then PADAG Axelrod) that Comey intended to send a letter to Congress and that Comey believed he had an obligation to do so. Given these circumstances, Lynch and Yates concluded it would be counterproductive to speak directly with Comey and that the most effective way to communicate their strong opposition to Comey about his decision was to relay their views to him through Axelrod and Rybicki. We found it extraordinary that, in advance of two such consequential decisions, the FBI Director decided that the best course of conduct was to not speak directly and substantively with the Attorney General about how best to navigate these decisions and mitigate the resulting harms, and that Comey’s decision resulted in the Attorney General and Deputy Attorney General concluding that it would be counterproductive to speak directly with the FBI Director.

This is not the first time the Department and the FBI have conducted a

politically-charged investigation, and it will not be the last. To protect the

institutions from allegations of abuse, political interference, and biased enforcement of the law, the Department and the FBI have developed policies and practices to guide their decisions. In the vast majority of cases, they are followed as a matter of routine. But they are most important to follow when the stakes are the highest, and when the pressures to divert from them—often based on well-founded concerns and highly fraught scenarios—are the greatest. No rule, policy, or practice is perfect, but at the same time, neither is any individual’s ability to make judgments under pressure or in what may seem like unique circumstances. It is in these moments—when the rationale for keeping to the ordinary course fades from view and the temptation to make an exception is greatest—that the bedrock principles and time-tested practices of the Department and the FBI can serve their highest purpose. This notion was most effectively summarized for us by DAAG George Toscas, who was the most senior career Department official involved in the daily supervision of the Midyear investigation:

One of the things that I tell people all the time, after having been in

the Department for almost 24 years now, is I stress to people and

people who work at all levels, the institution has principles and there’s

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always an urge when something important or different pops up to say,

we should do it differently or those principles or those protocols you

know we should—we might want to deviate because this is so

different. But the comfort that we get as people, as lawyers, as

representatives, as employees and as an institution, the comfort we

get from those institutional policies, protocols, has, is an unbelievable

thing through whatever storm, you know whatever storm hits us,

when you are within the norm of the way the institution behaves, you

can weather any of it because you stand on the principle.

And once you deviate, even in a minor way, and you’re always going

to want to deviate. It’s always going to be something important and

some big deal that makes you think, oh let’s do this a little differently.

But once you do that, you have removed yourself from the comfort of

saying this institution has a way of doing things and then every

decision is another ad hoc decision that may be informed by our policy

and our protocol and principles, but it’s never going to be squarely

within them.

There are many lessons to be learned from the Department’s and FBI’s

handling of the Midyear investigation, but among the most important is the need for Department and FBI leadership to follow its established procedures and policies even in its highest-profile and most challenging investigations. By adhering to these principles and norms, the public will have greater confidence in the outcome of the Department’s and the FBI’s decisions, and Department and FBI leaders will better protect the interests of federal law enforcement and the dedicated professionals who serve these institutions.

1. Recommendations

For these reasons, and as more fully described in previous chapters, we

recommend the following:

1. The Department and the FBI consider developing practice guidance

that would assist investigators and prosecutors in identifying the

general risks with and alternatives to permitting a witness to attend a

voluntary interview of another witness, in particular when the witness

is serving as counsel for the other witness.

2. The Department consider making explicit that, except in situations

where the law requires or permits disclosure, an investigating agency

cannot publicly announce its recommended charging decision prior to

consulting with the Attorney General, Deputy Attorney General, U.S.

Attorney, or his or her designee, and cannot proceed without the

approval of one of these officials.

3. The Department and the FBI consider adopting a policy addressing the

appropriateness of Department employees discussing the conduct of

uncharged individuals in public statements.

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4. The Department consider providing guidance to agents and

prosecutors concerning the taking of overt investigative steps,

indictments, public announcements, or other actions that could impact

an election.

5. The Office of the Deputy Attorney General consider taking steps to

improve the retention and monitoring of text messages Department wide.

6. The FBI add a warning banner to all of the FBI’s mobile phones and

mobile devices in order to further notify users that they have no

reasonable expectation of privacy.

7. The FBI consider (a) assessing whether it has provided adequate

training to employees about the proper use of text messages and

instant messages, including any related discovery obligations, and

(b) providing additional guidance about the allowable uses of FBI

devices for any non-governmental purpose, including guidance about

the use of FBI devices for political conversations

8. The FBI consider whether (a) it is appropriately educating employees

about both its media contact policy and the Department’s ethics rules

pertaining to the acceptance of gifts, and (b) its disciplinary provisions

and penalties are sufficient to deter such improper conduct.

9. Department ethics officials consider implementing a review of

campaign donations when Department employees or their spouses run for public office.

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