Bias is human nature — it doesn’t mean we can’t do our jobs

By Kent R. Kroeger (July 13, 2018)

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Harvard law professor Alan Dershowitz perfectly summed up FBI agent Peter Strzok’s appearance at a joint hearing before the U.S. House Judiciary Committee and House Oversight and Government Reform Committees: “It was a disaster — everybody looked terrible.”

The Washington Post editorial board went even further with their headline:

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Between Rep. Louie Gohmert’s (R-TX) indecorous use of Strzok’s extramarital affair with fellow FBI agent Lisa Page for public shaming purposes to Rep. Steve Cohen’s (D-TN) equally inappropriate suggestion Strzok deserved a purple heart, the House hearing offered little new information about the FBI’s investigation into Russian meddling in the 2016 election.

All the hearing did was expose the vacuity of the partisan arguments offered in the Trump-Russia collusion investigation. Here are just two examples of the rhetorical rubbish and illogical logic coming out of Thursday’s House hearing…

Did Strzok’s personal bias affect either FBI investigation?

First, we have the Republican’s contention that Strzok’s clear bias against Donald Trump affected his work as the FBI lead in both the Hillary Clinton email and Russian election meddling investigations.

Responding to that allegation in his prepared remarks, Strzok said, “After months of investigations, there is simply no evidence of bias in my professional actions,” noting also that the Dept. of Justice’s Inspector General investigation concluded that at no point did his political and personal opinions “impact any official action.”

While that answer may not be sufficient for pundits at the Fox News Channel, from my experience working for an Inspector General in a U.S. intelligence agency, Strzok’s defense is entirely credible.

Across the dozens of investigators, auditors and inspectors I worked with on a daily basis, almost all of whom at some point expressed partisan views. It is not only human nature to have opinions, but among the highly educated and experienced professionals I worked with in the U.S. intelligence community (IC), strong partisan opinions were often expressed in our daily office conversations. And among those openly expressed opinions, included on occasion were comments about subjects of open investigations.

Being committed to the integrity of an FBI investigation and also believing Trump was not qualified to be president are not mutually exclusive states of mind. Both can exist within the same person.

But across all of the highly-opinionated investigators and inspectors I worked with in the IC, did I ever witness or hear secondhand evidence of partisan bias changing the results of an investigation?

Never. Not once.

Why? Because the procedures, rules and norms imposed upon mid-level and high-mid-level career bureaucrats in our government’s Inspector General and criminal investigation offices are too strong and too absolute to allow otherwise.

If there is a bias at the FBI, it is an institutional bias against accusing high-ranked public officials of criminal behavior. It is, ironically, a bias that will most likely work in Trump’s personal favor in Robert Mueller’s investigation.

For this reason, I find Strzok’s public testimony on his impartiality with respect to the Clinton and Russia-Trump investigations to be not only plausible, but most probable.

If Strzok wanted to end Trump’s candidacy, why not leak to the press?

Here is where I do part company with Strzok and his sympathizers, exemplified by The Washington Post editorial board in their summary of Thursday’s joint House hearings: “If the (FBI) agency had been trying to harm Mr. Trump’s campaign, agents could have released damaging information on pro-Trump Russian interference before Election Day — and they did not.”

Ironically, it is The Washington Post’s own reporting that answers the question as to why FBI agents didn’t leak knowledge of Russian meddling in favor of Trump’s candidacy. In an election where Hillary Clinton was the clear favorite to win the election right up until election night, the last thing the Obama administration wanted to do was give the Trump campaign ammunition that suggested the Democrats were conspiring to undercut his candidacy.

The leak likely would have backfired. Besides, Clinton was destined to win — why take the risk?

Through U.S. intelligence, the Obama administration knew months before the 2016 election that hackers with “ties to Russian intelligence services had been rummaging through Democratic Party computer networks, as well as some Republican systems, for more than a year.” Friday’s news that the Mueller investigation indicted 12 Russians for hacking the DNC and Podesta emails offered little new information that had not already been disclosed by Washington Post writers Greg Miller, Ellen Nakashima and Adam Entous in their June 2017 story: “Obama’s secret struggle to punish Russia for Putin’s election assault.”

In June and July of 2016, DCLeaks and Wikileaks dumped 20,000 Democratic National Committee and Clinton campaign emails online. By late July, the FBI “officially” opened an investigation of the Trump campaign’s contact with Russian officials.

“It is the hardest thing about my entire time in government to defend,” a former senior Obama administration official involved in White House deliberations on Russia told The Washington Post. “I feel like we sort of choked.”

Why isn’t there a congressional investigation into the Obama administration’s breath-taking incompetence in stopping the Russian election meddling?

Russian’s interference in the 2016 election was the world’s worst kept secret. In late August of 2016, Democratic Senate leader Harry Reid (D-NV) called out publicly Russia’s election meddling in a letter to then-FBI Director James Comey.”

Comey himself wanted to publicly announce FBI counter-measures to the Russian election interference according to Newsweek. “Two sources with knowledge about the matter told Newsweek that Obama administration officials blocked the effort,” according to a National Public Radio news report.

Again, where’s the investigation into the Obama administration?

Crimes were most likely committed by both Clinton and Trump — only one will get indicted

Based on all available public information, Strzok did his job and committed no crime. But that is the problem.

When Obama’s Department of Justice (DOJ), under Attorney General Loretta Lynch’s leadership, effectively narrowed the scope of the Clinton email investigation to whether Clinton criminally mishandled classified material, they changed the final outcome of the investigation. By excluding any substantive inquiry into the destruction of subpoenaed government records (i.e., Clinton’s 30,000+ deleted emails), the DoJ guaranteed the FBI investigation would not end in an indictment of Clinton or any of her associates.

At one point during the FBI’s 2016 interview with Clinton’s chief of staff, Cheryl Mills, an FBI investigator did in fact ask about the decision rules used to identify and exclude Clinton’s 30,000+ ‘personal’ emails from public release, prompting Mills to walk out of the interview.

The Clinton campaign and DoJ’s public explanation on Mills’ walk-out was that she was protected from testifying regarding the email selection method due to attorney-client privilege. But there is no attorney-client privilege if the attorney is also committing criminal act, and the destruction of Clinton’s subpoenaed government records was a criminal act.

Where the criminal mishandling of classified material requires evidence of gross negligence or intent, destroying subpoenaed government records simply requires evidence that the records were destroyed and that the subject knew of their destruction. Proving gross negligence or intent has a high evidentiary threshold compared to proving that someone was involved in the destruction of subpoenaed evidence (an felony obstruction of justice crime).

When Lynch forbade the FBI investigators to even ask Clinton or her associates about events leading up to the destruction of over 30,000 emails, the ‘fix was in’ and the investigation’s final outcome was not going to include a Clinton indictment.

Here’s the problem for Clinton’s critics…limiting the scope of the Clinton email investigation was well within the DoJ’s right to exercise prosecutorial discretion. If before an investigation starts, prosecutors are convinced certain crimes will be hard to prove, it is within their right to exclude investigations into those crimes. That doesn’t mean the crimes didn’t happen. It just means prosecutors chose not to burn resources where an indictment is unlikely.

But that doesn’t make it right, especially when the evidence for the destruction of subpoenaed government records was well-known.

As for the Trump-Russia probe, with the new indictments against 12 Russian’s involved in illegal hacking, the broad outline is now appearing on how the Mueller investigation will end.

By many accounts now, Mueller is focusing on Trump senior adviser Roger Stone and his connection to Russian operatives connected to the email hacks.

According to The Washington Post, “The Russians used Guccifer 2.0’s Twitter account to send multiple messages to ‘a person who was in regular contact with senior members’ of Trump’s campaign, Mueller wrote in the indictment.”

While it is not a crime to engage in Twitter conversations with Russian hackers, Mueller’s team is looking for evidence that Stone coordinated with the Russians on how and when to disseminate the hacked emails in order to maximize their impact.

Even that might not be a crime, but it is close enough to warrant Mueller’s attention. Unfortunately for Trump’s critics, even if Stone did coordinate with the Russians, it is not clear how that would connect directly to Trump and thereby become an impeachable offense.

Trump’s biggest vulnerability remains in obstructing the Mueller probe, not in personally colluding with the Russians.

As for Strzok, he is nothing more than a cog in the wheel of a sprawling federal bureaucracy dedicated to preserving the interests of the Washington, D.C. establishment. It would have been nice if the Republicans during Thursday’s hearing had pressed Strzok to enlighten us on how early and extensively in the election the FBI started running informants against the Trump campaign.

As it stands today, the American public and Congress remain in the dark about exactly what prompted the FBI to start throwing informants at the Trump campaign well before opening the Crossfire Hurricane counter-intelligence investigation in late July 2016. It no longer seems credible that it was George Papadopoulos, a low-level Trump campaign operative, spilling the collusion beans to an Australian diplomat.

But I bet Pete Strzok knows. And he’s not telling. At least not yet.

-K.R.K.

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