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Four Moments from Day One of the Inspector General’s Testimony

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My apologies for the lack of recent posts. We are in the midst of a meaningful extended family event that has been planned for well over a year. Family remains more important than politics.

Inspector General Horowitz testified before the Senate Judiciary Committee yesterday. His Opening Statement can be found here.

Some excerpts from IG Horowitz’s Opening Statement:

Our report includes, for example, text messages that we recovered just last month, which were significant to our findings. It also includes an analysis of the FBI’s decision not to request access in May 2016 to certain classified information, a decision that we did not learn of until the later stages of our review.

We found that the inappropriate political messages cast a cloud over the Midyear investigation, sowed doubt about the credibility of the FBI’s handling of it, and impacted the reputation of the FBI. Moreover, we found the implication that senior FBI employees would be willing to take official action to impact a presidential candidate’s electoral prospects to be deeply troubling and antithetical to the core values of the FBI and the Department of Justice.

We did not find documentary or testimonial evidence that improper considerations, including political bias, directly affected those specific investigative decisions, in part because the decisions were made by the larger Midyear team or the prosecutors. This determination by the OIG does not mean that we necessarily endorse the decisions or conclude they were the most effective among the options considered, or that our finding should or can be extrapolated to cover other decisions made during the course of the investigation by FBI employees who sent inappropriate political messages.

We found that the FBI’s explanations for its failure to take immediate action after discovering the Weiner laptop in October 2016 to be unpersuasive, and we did not have confidence that the decision of Deputy Assistant Director Peter Strzok to prioritize the Russia investigation over following up on the Weiner laptop was free from bias.

FBI Director James Comey clearly departed from FBI and Department norms, and his decisions negatively impacted the perception of the FBI and the Department as fair administrators of justice.

Yesterday’s Inspector General testimony was relatively uneventful with several exceptions. Lindsey Graham provided the most direct and useful questioning. For those surprised by this, recall Graham’s involvement in the Fusion GPS Hearings:

If we have to subpoena the people at Fusion GPS, we need to subpoena them. Because Mr. Browder has now accused them of working for the Russians. And at the end of the day, if that’s true, the Democratic Party is working with somebody who was working with the Russians, whether they knew it or not.

What follows are the video segments of questioning by Graham, a possible allusion to a Grand Jury, questioning by Cruz and questioning by Kennedy. A transcript of Graham’s exchange is provided.

Lindsey Graham:

GRAHAM: I think you did a good job, but the whole idea that this is normal, folks, there’s nothing here normal. I don’t want you to think the FBI does this day in and day out. This is not normal. I think that’s what you tried to find.

HOROWITZ: Yes.

GRAHAM: Do you believe it’s pretty clear to everybody in the country that by July 5th Donald Trump was the presumptive nominee of the Republican Party?

HOROWITZ: That’s my recollection, and from the –

GRAHAM: The convention was on the 18th.

HOROWITZ: And the texts, I think, reflect that as well.

GRAHAM: I’m going to read this text message from page to Strzok on August the 8th after he had gotten the nomination. She says:

“Trump’s not ever going to become President, right? Right?” 

Strzok responded:

“No, no, he’s not. We’ll stop it.”

Now I don’t know how you feel about that. That’s pretty unnerving. Strzok, wasn’t he the lead investigator of the Clinton e-mail investigation?

HOROWITZ: He was in essence the lead investigator.

GRAHAM: The head guy looking at Clinton on August 8th says we’ve got to stop Trump. Now was that just idle talk? A week later here’s what they say. Strzok text message to Lisa Page:

“I want to believe the path you threw out to consideration in Andy’s office – that there’s no way he gets elected – but I’m afraid we can’t take that risk. It’s like an insurance policy and the unlikely event you die before you’re 40.”

Now that’s a week later. Who’s Andy?

HOROWITZ: Our understanding it was Andy McCabe, the deputy director.

GRAHAM: So, you have the deputy director meeting with the lead investigator of the Clinton e-mail investigation and Ms. Page, who’s involved somehow, meeting in Andy’s office discussing taking out an insurance policy to make sure Donald Trump doesn’t become President? Is that what you’re telling us?

HOROWITZ: I’ll be clear, I can’t speak to whether McCabe – Mr. McCabe was there or not.

GRAHAM: Did you ask Mr. McCabe?

HOROWITZ: We did. He said he did not recall.

GRAHAM: So, one of them is lying. So, I want you to reopen this investigation and come back and tell us. Do you believe Strzok or do you believe McCabe? Because you just told me the deputy director of the FBI says he’s not “the Andy”.

HOROWITZ: He doesn’t – just to be clear, they’re talking about a conversation in his office.

GRAHAM: Yes.

HOROWITZ: He’s claiming — he is saying he does not recall whether he was there or not and neither of those individuals are putting him in the middle of their conversation.

GRAHAM: All I’m saying is that “the Andy’s” office where this occurred, he wasn’t there. What did Strzok – Strzok says he’s there. Somebody’s lying. Anyway, we’ll figure that out later. None of this is normal, folks.

Let’s look at the actual interview itself. How many people were involved in the Clinton interview on July 2nd?

HOROWITZ: There were six or eight people present but two agents conducting the interview.

GRAHAM: So, as I understand it, there were two agents and two prosecutors?

HOROWITZ: Correct.

GRAHAM: Now this was an e-mail sent in February 2016 from page to McCabe:

“Hey, you surely already considered this, but in my view our best reason to hold the line at two and two, two agents and two prosecutors, is she might be our next President.”

How did you feel about that?

HOROWITZ: We were concerned about it and we lay out here why we were concerned.

GRAHAM: OK. Let’s keep talking about this interview. One of the FBI agents in the interview said on election day to another FBI agent:

“You should know that I’m with her.”

Now her was Clinton, right?

HOROWITZ: Correct.

GRAHAM: How do you feel about that?

HOROWITZ: Very concerned.

GRAHAM: OK. Eventually very concerned gets to be enough already. I’m very concerned, you know — one, I’m glad I don’t text and e-mail, that’s one thing I’m glad I don’t do, but circumstances — have you ever proved a case by circumstantial evidence, Director Wray?

WRAY: Yes.

GRAHAM: Well, I’m going to write you a letter and talk to you about why you should reconsider your findings as to whether or not it affected the investigation. Here’s what Ms. Page said on March 4th, 2016:

“God, Trump is a loathsome human.”

How do you feel about that? I mean, she’s entitled to her opinion.

HOROWITZ: I think we’ve laid out here why we were so concerned about it.

GRAHAM: Well, when you add it all up, as early as March these people hated Trump and this investigation was anything but by the book and at the end of the day what Comey did just blows me away as much as it does y’all, and I can’t believe that this happened to my FBI.

I told you the story, Mr. Wray, Director Wray, about wanting to be part of the organization and y’all were smart enough not to take me. The bottom line is, if you’re on our side of the aisle, this really does hit you hard. And we can’t just write it off.

I think there was a lot of bias that did affect an investigation that is to me almost impossible to explain using any standard that I grew up with as a prosecutor or even as a defense attorney.

This is Strzok to Page on October 20th:

“Trump is an f’ing idiot.”

The bottom line is, I’m glad you found what you found, Mr. Horowitz.

I’m not buying that the Clinton e-mail investigation was on the up and up, and the reason I’m not buying it is because the two people intimately involved, one, the guy – the lead investigator clearly did not want to see Donald Trump become President of the United States.

Finally, do you agree with me that finding her liable criminally would be inconsistent with stopping Donald Trump? If they found Hillary Clinton was criminally liable, that paves the way for Donald Trump. Can you put those two things together?

HOROWITZ: I guess it would depend when.

GRAHAM: How about July? Before the convention.

HOROWITZ: It clearly could conceivably –

GRAHAM: Well, not clearly conceivably, that’s exactly what’s happening here, folks. You cannot hold her criminally liable and stop him. As to the law, why did they change gross negligence in the original statement, Director Wray, to reckless disregard?

WRAY: I think I would defer to the inspector general who looked into that.

GRAHAM: Why did they do that?

HOROWITZ: The explanation was that –

GRAHAM: Can I suggest something.

HOROWITZ: Yes.

GRAHAM: Gross negligent is a criminally liable standard.

HOROWITZ: Correct.

GRAHAM: So, if they said it the way they originally wrote it, she’s guilty of a crime, and the reason they changed it is because she’s not guilty of a crime and if you want to stop him, it can’t be gross negligence.

What is the difference between reckless disregard and gross negligence?

HOROWITZ: Not much.

GRAHAM: It is a lot politically.

HOROWITZ: Right.

GRAHAM: Thank you.

The following is a short segment between John Kennedy and IG Horowitz regarding an email exchange between Amanda Renteria, the Political Director of the Clinton Campaign, and AG Loretta Lynch.

This exchange is important enough to highlight on its own. For the full segment see Kennedy’s questioning below.

KENNEDY: Your Classified Index. Does it contain or discuss an email that refers to a conversation allegedly between AG Lynch and a person named Amanda Renteria?

HOROWITZ: I’m not sure what I can say about that publicly, given the matter’s classified. So I would ask you if I can get back to you. I’m hesitant to say anything in a public forum.

KENNEDY: Would you allow our Chairman and ranking member to see the Classified Index?

HOROWITZ: Absolutely…Because of the nature of the information, it was classified at such a high level by the Intelligence Community that it limited even the members who can see it – as well as the staffs…We very much want the Committee to see this information.

This exchange is in reference to the existence of a document indicating Lynch assured the political director of Clinton’s campaign she wouldn’t let FBI agents “go too far” in probing the former secretary of state.

Next we have a possible allusion to a Grand Jury:

[We requested] A Review to determine whether there was, for example, Grand Jury, Title III, other Classified Information that would be inappropriate to be public, and in this case there was, and at our request, the Department went to court and got unsealing orders so that what you see is unredacted and full.

Horowitz’s statement is not conclusive. He could have been referring to Title III and/or Classified Information as opposed to Grand Jury data. But his mention of a Grand Jury remains tantalizing.

We have received indications of a Grand Jury’s existence previously. From a footnote contained in a letter from Bob Goodlatte:

This request does not, at this time, include records of grand jury deliberations or proceedings covered by Rule 6(e) of the Federal Rules of Criminal Procedure. This exclusion, however, does not extend to documents merely presented to the grand jury, derived from documents presented to a grand jury, or any documents revealing when the court made the decision to empanel a grand jury.

You can read more about Goodlatte’s letter here.

Questioning by Ted Cruz:

Questioning by John Kennedy (Renteria segment begins at 7:56 mark):

Testimony is ongoing today from the House Judiciary and Oversight & Government Reform Committees. Updates will follow.

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