Joe Biden: The Brian Williams presidency
3 questions inspector general must answer regarding investigation of FBI leadership
The Office of the Inspector General (OIG) is a nonpartisan oversight branch charged with detecting and deterring misconduct within the Department of Justice (DOJ). The FBI and its director answer to the DOJ and its head, the attorney general.
It is no secret that the OIG is investigating allegations of malfeasance within the upper echelons of FBI leadership during the James Comey era, from September 2013 until his firing last May. Its report could ruin careers and reputations at the FBI, damage the bureau's morale and image, or even lead to the prosecution of some FBI officials.
The expected report is a hotly debated topic between two intransigent camps, pitting adherents of the Comey cult-of-personality against those who view his tenure as fraught with somewhat well-intentioned but inherently politicized missteps.
Those detractors, with whom I claim association, view Comey's oversight as a period when the bureau's organizational values tacked out of alignment. We lament the missed opportunity for Comey, the custodian of those values. to exhibit courage and confront a bully of a president who, sensing weakness, exploits it.
Leaking FBI documents to the press - through a surrogate, no less - doesn't show leadership or courage; it's an abdication of responsibility. And it leads us to a point where the OIG report should provide clarity on three key questions:
1. Were investigative documents altered by senior FBI leadership?
The FD-302 is an FBI testimonial document (I drafted thousands of them during a quarter-century career with the bureau) designed to capture facts that report or summarize interviews with subjects of, or witnesses to, events in an investigation.
Investigative journalist Sara Carter has reported that FBI sources maintain the FBI's deputy director under Comey, Andrew G. McCabe, may have asked FBI agents to alter or change their findings in their 302s; Carter alleges that OIG Inspector General Michael Horowitz is looking into this.
During my tenure in the FBI, no supervisor or executive manager ever asked me to materially change anything in my 302s; as an FBI boss for almost 15 years, I never requested any investigators to alter the substance of their findings in a 302.
If Horowitz can prove that senior FBI leadership ordered investigators to interfere with written evidence on an FD-302, that is the very definition of obstruction of justice. FD-302s aren't "opinion pieces." This could be a central part of the OIG's report and, if the allegations are proven, it would not bode well for McCabe and others.
2. Did Deputy Director McCabe purposely "slow-walk" the discovery of pertinent emails discovered on former congressman Anthony Weiner's laptop and "stand down" relevant FBI investigations to protect Hillary Clinton?
We now know that the FBI knew about 3,000 additional, potentially classified emails discovered on a laptop that Clinton aide Huma Abedin shared with her spouse, the disgraced Anthony Weiner (D-N.Y.), about a month before Comey's letter announcing the same to Congress.
As the Wall Street Journal first reported, weeks transpired after that discovery by agents of the FBI's New York office and by New York Police Department detectives investigating potential child-endangerment charges against Weiner.
While Comey ultimately drafted the letter to Congress that reopened the Clinton investigation - and, some believe, diminished Clinton's chances in the 2016 presidential election - it is alleged that McCabe resisted notifying Congress of the discovered emails.
Sources confirm it was only after NYPD threats of "going public" with the email discovery that FBI headquarters reluctantly decided to notify Congress - something Comey previously assured Congress he would do as soon as any new evidence was discovered.
Agents with knowledge of the email investigation, and a tangential case involving alleged "pay to play" scheming between the Clinton State Department and the Clinton Global Initiative, advise me that McCabe wanted to disassemble the Little Rock, Ark., FBI office's investigation into corruption within the Clinton Foundation. But agents loudly and defiantly balked, and the case remained open.
McCabe, of course, has come under fire for his wife's acceptance of funds for her unsuccessful 2015 Virginia senate campaign from a political action committee tied to then-Gov. Terry McAuliffe (D-Va.), a longtime Clinton ally and associate.
The most difficult part of any investigation can be proving motive, intent. If the OIG draws a connection between McCabe's political relationships and the decisions he made, therein would lie the elusive "smoking gun" that FBI senior leadership purposely distorted their fealty to the Constitution and the bureau's mission.
Embarrassing text messages between FBI deputy assistant director Peter Strzok and FBI attorney Lisa Page already indicate an "insurance policy"against a Trump presidency had been discussed in "Andy's office," apparently referring to McCabe. This undoubtedly will be at the heart of the OIG's focus.
Was there direct, improper coordination - collusion - between the Obama White House, the attorney general and the FBI director?
When James Comey appeared before television cameras on July 5, 2016, to announce that the FBI would not seek charges over Hillary Clinton's improper usage of a private email server, he made a critical aside. He steadfastly maintained that the White House and DOJ knew nothing of his decision and would learn of it as everyone else would, at the conclusion of his remarks.
Comey had been thrust into an untenable position. Then-Attorney General Loretta Lynch's inexplicable 30-minute private meeting with former president Bill Clinton aboard a government jet at the Phoenix airport on June 27, 2016, was conducted out of earshot of her staff. Lynch's insistence that this dubious interaction was a conversation about "golf and grandkids" has been well chronicled.
Yet, Comey steadfastly maintained that his taking this unprecedented maneuver to circumvent DOJ and speak directly to Americans about the Clinton case was based on his foresworn decision to consult neither DOJ nor the White House, to avoid the appearance of political influence.
Recently released text messages between Strzok and Page indicate Lynch knew of Comey's decision well in advance. President Obama placed his finger on the scales during a Fox News interview on April 10, 2016; the president, who made a habit of weighing in on cases that had not been fully adjudicated, flatly stated he "continued to believe [Secretary Clinton] has not jeopardized America's national security." Case closed.
Since we now also know Strzok and Page attempted to circumvent discovery of their efforts to influence the Clinton email server investigation by switching to non-governmental electronic devices, as highlighted by the Senate Homeland Security and Governmental Affairs Committee, Comey's insistence beggars belief.
What else could be gleaned from recovered text messages on devices Strzok and Page switched to, to avoid scrutiny? And if Comey lied about what Lynch and Obama knew before his press conference, what else was he dishonest about?
We all must believe in the rule of law and in due process. In our system of justice, there is a presumption of innocence, and those mentioned above deserve that, too.
Yet, to pretend that the facts outlined above don't hint of a troubling pattern, is just so much whistling past the graveyard. The OIG's report must provide the answers.
James A. Gagliano is a CNN law enforcement analyst and retired FBI supervisory special agent. He also serves as an adjunct assistant professor at St. John's University and is a leadership consultant at the Thayer Leader Development Group (TLDG) at his alma mater, the United States Military Academy at West Point. Follow him on Twitter @JamesAGagliano.