As Mueller moves forward, lingering questions about Comey and Clinton

A review of the investigation into Hillary Clinton’s use of a private email server is expected to be released soon by the Department of Justice’s inspector general. It may help answer growing questions among Republicans about possible bias at the FBI – and shed light on the origins of the Trump-Russia probe.

J. Scott Applewhite/AP
Special Counsel Robert Mueller departs the Capitol after a closed-door meeting with members of the Senate Judiciary Committee about Russian meddling in the election and possible connection to the Trump campaign, in Washington, June 21, 2017.

The challenge facing Special Counsel Robert Mueller in his investigation of President Trump and his associates extends beyond determining whether there was a conspiracy with Russians to meddle in the 2016 election or an attempt to obstruct the FBI’s investigation.

In a larger sense, Mr. Mueller must confront the grim prospect that whatever his final conclusions in the Trump-Russia investigation, they will likely be met with suspicion – and possibly rejection – by a significant portion of the country.

Rhetoric surrounding the investigation has grown increasingly bitter as members of Congress promote sharply divergent narratives to explain the unfolding confrontation.

The message from Democrats: Expect nothing less than indictments and/or a Trump impeachment.

The message from Trump supporters: A “deep state” conspiracy is undermining the president and his administration.

Those disparate reactions were on display in the wake of Friday’s 37-page indictment of 13 Russian nationals and three Russian organizations for conspiracy to defraud the United States in connection with a wide-ranging scheme to influence the 2016 election.

Trump and his supporters hailed it as vindication, seizing on Deputy Attorney General Rod Rosenstein’s statement that “there is no allegation in this indictment that any American was a knowing participant in this illegal activity.”

Democrats saw it as giving significant new weight and legitimacy to an investigation that is still in its early stages – with much more to come. Indeed, the brisk pace of the investigation was underscored by yet another indictment on Tuesday, of a London lawyer charged with making false statements to investigators about work he did with a Trump campaign associate six years ago.

It remains to be seen whether Mueller and his team of prosecutors and investigators can cut through the fog and fury of Washington politics to reach a sober, credible outcome.

“I don’t know how it is going to work for Mueller, whether his findings are going to be embraced as legitimate or not,” says Danielle Brian, executive director of the Project on Government Oversight, a nonpartisan watchdog group in Washington. “I used to be able to say, look at all the facts and you can see if they are persuasive or not. But now people don’t see that as an essential part of being persuasive.”

Partisan bickering on Capitol Hill has largely replaced serious congressional oversight, Ms. Brian says.

“I have lost faith that either the Democrats or Republicans are being comprehensive in their description of things,” she says. “I feel both sides have been telling only part of the story.”

The divergent narratives surrounding Mueller’s investigation were in many ways shaped by a different, yet not unrelated probe: the investigation into Hillary Clinton’s use of a private email server while she was secretary of State. While Mueller appears to be proceeding in a by-the-book manner, the Clinton case was full of irregularities – which have fed Republican suspicions about bias at the Justice Department and the FBI, and raised questions for many about the genesis of the Trump probe.

The central focus of the Mueller investigation is whether there was a conspiracy between the Trump campaign and Russia to undercut Mrs. Clinton’s campaign for president. The investigation is also looking into whether Trump engaged in obstruction of justice when he fired then-FBI Director James Comey, and later reportedly considered firing Mueller.

The special counsel has indicted two Trump campaign officials and obtained guilty pleas from two others. But at least so far, none of the four have been charged with involvement in a criminal conspiracy with Russia to undermine the election.

“I don’t think there is anyone better situated to deliver credible charges – if they should be brought – than Bob Mueller,” says Austin Evers, executive director of American Oversight, a new watchdog group formed in March 2017 to keep a close eye on the Trump administration.

“Since Bob Mueller was appointed special counsel we have never heard his voice. He’s never given a press conference. You don’t even see pictures of him and his team walking around Washington, D.C.,” Mr. Evers says. “He is the most talked about man in Washington other than Donald Trump, and he never speaks.”

Evers says that Mueller has effectively insulated himself from political flak by concentrating exclusively on the task he was appointed to complete. This gives Mueller the kind of credibility necessary to investigate a president.

“He is doing a masterful job of putting his head down, doing the work, not showing his hand,” Evers adds.

A tale of two investigations

Comparisons between the Clinton investigation and the Trump-Russia investigation were perhaps inevitable.

Both have garnered massive press attention. In the case of Clinton, it forced her campaign onto the defensive and left a dark and distracting cloud hanging over her bid to become president.

In a similar way, the accusations against Trump – regardless of whether they are true or false – have kept his administration off balance, and have left a dark and distracting cloud hanging over his presidency.

But that’s where the similarities end. At least as it stands now, the two investigations have been conducted in sharply different ways.

For example: At least five individuals who made conflicting statements to federal agents in the Clinton email case were granted immunity from prosecution. They included Clinton’s chief of staff. In addition, the FBI agreed to destroy two laptop computers that once held copies of Clinton’s emails.

In contrast, when federal agents working on the Trump-Russia investigation encountered discrepancies in statements made by former National Security Adviser Michael Flynn and George Papadopoulos, a foreign policy adviser, both men faced felony charges of lying to federal agents.

Both have since pleaded guilty and are cooperating with prosecutors. Unlike the Clinton aides who were offered immunity, the two former Trump aides will emerge after their cooperation as convicted felons.

For Tom Fitton, president of the conservative watchdog group Judicial Watch, the two investigations couldn’t be more different.

“With [then-FBI director] Comey, you had serious allegations against Mrs. Clinton that were not seriously investigated or were brushed aside,” he says. “With Trump, you had spurious allegations pursued full-speed-ahead by the Justice Department and FBI.”

Judicial Watch played a leading role in uncovering the Clinton email issue, filing repeated Freedom of Information Act lawsuits over a period of years to force reluctant agencies to release the Clinton emails. The effort may have been decisive in the 2016 election.

“I think the presidency was won or lost based on the Clinton email scandal,” Mr. Fitton says. “And this presidency could live or die based on the Trump-Russia-collusion scandal and how it is handled.”

Accusations of bias

For the past year, the Justice Department’s inspector general has been conducting a review of the FBI’s investigation into Clinton’s use of a private server. The report is expected to be released soon.

It could help answer an array of unresolved questions, including whether partisan or other improper considerations influenced FBI and Justice Department officials.

It may also shed light on the early stages of what became the Trump-Russia investigation, including how and why the FBI began its probe of alleged collusion between then-candidate Trump and the Russian government.

Evers, of American Oversight, acknowledges that the much-anticipated inspector general’s report will bring the Clinton email case back into the news, but he does not believe it will provide new ammunition for Trump and his supporters to undermine the Mueller investigation.

Instead, he says, the report may help place recently publicized FBI text messages into their proper and more benign context.

Those messages, between the FBI’s Counterintelligence Section Chief Peter Strzok and his girlfriend, Lisa Page, a senior FBI lawyer, have raised questions about political bias within the FBI’s leadership.

Transcripts of the text messages, obtained by the inspector general, suggest the two FBI officials had pro-Clinton political views and a strong anti-Trump bias.

Republicans have interpreted some of their private texts as reflecting a “deep state” conspiracy against Trump. In one exchange, Mr. Strzok makes a cryptic reference to an “insurance policy” in the event that Trump won the election.

The inspector general’s report may provide a more detailed explanation of that comment and other texts once the two officials are given an opportunity to put them in context. But some of the text messages may be difficult to explain away.

One particularly troubling text message was sent by Ms. Page in early July 2016.

In his now famous press conference exonerating Clinton in the email matter, then-Director Comey told the American public that no one outside his inner circle at the FBI was aware that he was about to recommend that Clinton not be charged.

“I have not coordinated or reviewed this statement in any way with the Department of Justice or any other part of the government,” Comey told the nation in his July 5, 2016 statement. “They do not know what I am about to say.”

Comey repeated the assertion two days later while testifying under oath in Congress. He said he “did not coordinate with anyone. The White House, the Department of Justice, nobody outside the FBI family had any idea what I was about to say.”

But a text message from Page to Strzok suggests that Attorney General Loretta Lynch already knew what Comey was about to say. The text message was sent four days before Comey’s press conference.

That day, July 1, Ms. Lynch issued a public statement in which she announced that she would accept whatever recommendation the FBI made in the Clinton case.

Lynch’s impartiality had been called into question after it was revealed that she had engaged in a secret meeting on June 27, 2016 with former President Bill Clinton in a private aircraft parked on the tarmac at an airport in Arizona. The secret meeting raised the appearance of a conflict of interest, but the attorney general did not recuse herself from the Clinton case or suggest the appointment of a special counsel. Instead, she said she would leave it up to the FBI to decide how to proceed.

The maneuver was apparently designed to create an impression that Lynch had stepped aside. But she never did.

After Lynch’s July 1 announcement, Page sent a text message to Strzok. It said in part: “it’s a real profile in couragw [sic], since she knows no charges will be brought.”

Questions about Comey’s role

The following day, July 2, the FBI conducted its first, and only, interview of Hillary Clinton in its investigation of her use of a private email system. (In most federal investigations, agents and prosecutors wait until after the subject of the investigation has been questioned to decide whether to file charges.)

It is possible that the Page text message about the attorney general is not accurate or has been taken out of context. The inspector general’s report may help resolve that issue.

Other documents found by the inspector general raise additional questions about Comey’s role in the Clinton email case. The documents include early drafts of what would become Comey’s July 5 exoneration statement.

The FBI director apparently began writing the statement in early May 2016 – two months before his July 5 statement. It suggests he’d made up his mind not to charge Clinton long before agents had conducted more than a dozen pending interviews, including the questioning of Clinton and her chief of staff, who hadn’t yet been granted immunity.

In addition, the early drafts show how Comey’s exoneration statement was edited in ways that watered down the FBI director’s conclusions about the evidence against Clinton. Where he had initially written that Clinton’s actions in transmitting and receiving highly classified information on her private email system were “grossly negligent,” the phrase was changed in a later draft to read that she had been “extremely careless.”

The change carried legal significance because misusing classified information becomes a federal crime if it is done with “gross negligence.”

As FBI director, Comey’s role should have been strictly limited to presenting the bureau’s investigative findings to prosecutors in the Justice Department.

But after public disclosure of the attorney general’s meeting with Bill Clinton, Comey’s status was elevated. The director, who had worked in both Republican and Democratic administrations, found himself in the difficult position of deciding how to proceed in a case involving the person most political observers believed was about to be elected the next president of the United States.

It is unclear what factors weighed on Comey in making his decision not to charge Clinton. There is no evidence that any impermissible factor like politics, or concern that he might lose his job, played a role. But in this area, too, the inspector general’s report may shed new light.

Comey’s actions are potentially important to ongoing investigations because the team of leaders at the FBI and Justice Department who oversaw the Clinton investigation is the same team of leaders who started the Trump-Russia investigation.

The dossier

Republicans are now attempting to refocus public attention onto the role played by the Clinton campaign in helping to launch the Trump-Russia investigation.

In the months leading up to the 2016 election, the Clinton campaign hired an outside firm, Fusion GPS, to assemble an opposition research report containing dirt on Donald Trump. Fusion contracted much of the work out to a former British intelligence officer and Russia specialist named Christopher Steele. His reports were eventually compiled into what’s become known as the “Trump dossier.”

According to congressional testimony by Fusion’s founder, Mr. Steele used his contacts in the intelligence community to deliver the Trump dossier to the FBI. Steele also provided information from the dossier to select members of the US media in an effort to trigger news coverage of the dossier’s allegations against Trump in the months and weeks leading up to the election.

Republicans, led by House Intelligence Committee Chair Devin Nunes, suggest that the FBI relied heavily on Steele’s unconfirmed dossier to obtain authorization from the secret Foreign Intelligence Surveillance Court to spy on an advisor to the Trump campaign, Carter Page. Congressman Nunes suggests the FBI never fully disclosed to the surveillance court that the dossier was paid for by the Clinton campaign.

The ranking Democrat on the House Intelligence Committee, Adam Schiff, disputes the allegation that the FBI’s surveillance application was deceptive. Congressman Schiff and other Democrats note that the FBI’s interest in Mr. Page pre-dated the dossier, and that the warrants to surveil him were renewed multiple times. He calls the Nunes effort a distraction and charges that Republicans are trying to protect Trump by seeking to discredit the FBI.

Judicial Watch’s Fitton says he is convinced there is no substance to the charges of Trump involvement with Russia to meddle in the 2016 election. He says the Mueller investigation should be shut down.

“I think the whole structure of the Russia investigation has been compromised,” he says. “Everything that Mueller has done ought to be reexamined.”

Evers of American Oversight concedes that the FBI may not have always acted correctly – but says that in no way invalidates Mueller’s investigation.

“The FBI made mistakes in 2016 in connection to the Hillary Clinton email investigation, and Donald Trump is trying to use that as a pretext to obstruct investigations into whether he colluded with Russia,” Evers says.

“No one will come out of this looking good,” he says, “with the possible exception of Bob Mueller.”

Editor’s Note: This story has been updated to incorporate recent news events.

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