James Comey’s higher disloyalty to America

There was no evidence of political bias affecting investigative outcomes in the Hillary Clinton email investigation, says Justice Department inspector general (IG) Michael Horowitz. So perhaps it was institutional bias. Or even unconscious bias in those pages of texts between FBI agents culminating in the ominous “We’ll stop it” reference to Donald Trump’s election. These messages sure don’t project the culture of fairness and objectivity we needed in the middle of a divisive presidential campaign.

The organization that former FBI director James Comey presided over was filled with leakers grabbing free sports tickets, a high official whose wife received massive Democratic political donations, and anti-Trump animus that carried over into the Russia investigation. Five top investigators were cited for unacceptable bias, and the IG expressed concern that the shift to prioritize the Russia investigation with much the same team may well have been driven by anti-Trump animus.

{mosads}Comey, as the conductor of this band, took “extraordinary” and “insubordinate” actions, according to the IG, repeatedly violating the bounds of his role to, in essence, take the law into his own hands — and his actions quite possibly affected the outcome of the election. When Comey was finally fired, he leaked government documents and triggered an independent counsel investigation to compound his interference with our democracy, even though it was Comey who exceeded the authority of his office. The idea that firing him was obstruction of justice, given this report and Deputy Attorney General Rod Rosenstein’s memo, is now absurd on its face.

When Comey issued an unauthorized and unprecedented report to the country on the email investigation, along with his personal recommendation against prosecution, then-Attorney General Loretta Lynch should have acted decisively to fire him. That would have put principle over politics. Comey seized a role that was not his, violating procedure and policy, but he saw himself as removing the political hot potato of acquitting Clinton from Lynch’s head. He went unpunished for his behavior, so he kept doing it, issuing the late October letter that fairly angered the Clinton team. His disloyalty to the office, to the Constitution and to all of us is at the core of why the FBI will have to be rebuilt.

In fairness, Clinton can say that the IG report finds the decision not to prosecute her for violating national security was judged as reasonable and not the result of evidence of bias. This is a big win for her from this report, and maybe the nation has heard enough about these emails. President Bill Clinton gets knocked a bit, but I was relieved to find out that the meeting on the Phoenix airport tarmac with Lynch really was spontaneous. I fault Lynch for not keeping an aide there to takes notes and protect her integrity.

This is a report of painstaking detail and fairness, affording all a chance to rebut or explain their actions. Yet, in some ways, it fails to zero in on the big picture of the flaws of the investigation. While investigators of the Clinton Foundation were told to lay low and kept from examining the emails, enormous resources were put into determining whether Clinton and her team circulated classified information. Yet, the legal analysis made the search irrelevant. According to its interpretation of the law, the Justice Department determined Clinton had to have “intent” to put the classified information in the hands of people outside the State Department. Even foreign hacking of her email did not matter. It had to get there willingly, not unwittingly.

Of course, they ignored the fact that employees of the IT firm, who had no security clearance, had unfettered access to these emails, and so apparently did “Carlos Danger” (website alias of Anthony Weiner, husband of one of Clinton’s top aides), whose laptop had 700,000 emails on it. In the 1990s, a former CIA director who merely took laptops home was saved from prosecution by then-Attorney General Janet Reno only by a last-minute pardon from President Clinton.

In a significant footnote, the IG confirms that two of Hillary’s top aides told the FBI they didn’t even know their boss had a server until they, like President Obama, learned of it on the news. Right. So who ordered the new 60-day email destruction policy six months earlier? And who told the State Department employee who set up the server that it was kosher because it’s the same thing as Colin Powell did? And what about the testimony by a top aide that her email was “in the cloud” and that there were no backups, only to find multiple backups on the Weiner laptop?

These are the kinds of inconsistencies right at the core of the matter under investigation that special counsel Robert Mueller would love to have in his probe. Instead, he has indicted his targets for unrelated foreign lobbying and tax evasion from 2006. An IT employee of Platte River lied twice to the FBI about whether he destroyed the Clinton emails after he was told they were under congressional subpoena. Then they give him immunity, and he admits he did it but says he acted alone despite his contacts with Clinton aides and lawyers. So much for caring about enforcing congressional subpoenas. This guy actually does the equivalent of destroying the Nixon tapes and is lauded for his cooperation.Two other copies of the emails existed, one on a thumb drive and the other on a laptop, and both disappeared.

Comey and fired FBI Deputy Director Andrew McCabe continue to view themselves as great public servants despite this report. Both have long careers and, at times, did some great things. But by 2016, they became so infected with own hubris that they damaged — not defended — the FBI as an impartial investigator of facts. By believing and continuing to believe that only they could save the Union, they betrayed their oaths and lost their way. Each also intervened unethically to protect themselves, McCabe in orchestrating a leak to correct a news article on himself and Comey who issued the October letter (it seems) out of fear he would have problems remaining FBI director if he didn’t come forward.

The FBI will require more than the modest reforms suggested by the IG to restore its credibility. Its job is not to investigate campaigns and presidents but to fight crime, and any future investigations of political figures will require a balanced group of prosecutors and investigators, not a group of one-sided beltway elites far removed from the rest of America.

We live in a highly politicized time, and in these times, we turn to law enforcement to administer blind justice and reinforce our faith in our country. Maybe there was no smoking gun tying these decisions to politics, but a culture of bias that was evident at the top of the FBI has worked to interfere with our elections and is criminalizing our politics — and we have to stop it.

Mark Penn is a managing partner of the Stagwell Group, a private equity firm specializing in marketing services companies, as well as chairman of the Harris Poll and author of “Microtrends Squared.” He served as pollster and adviser to President Clinton from 1995 to 2000, including during Clinton’s impeachment. You can follow him on Twitter @Mark_Penn.