Clin­ton probe di­vided Jus­tice, FBI

McCabe re­port re­veals rift be­tween agen­cies

The Washington Times Daily - - FRONT PAGE - BY JEFF MORDOCK

Ac­ri­mony be­tween the FBI and the Jus­tice Depart­ment was so bad in the wan­ing days of the Obama ad­min­is­tra­tion that some agents quit the bureau in frustration, a re­tired G-man says.

Frac­tures which be­gan dur­ing the ten­ure of for­mer At­tor­ney Gen­eral Eric H. Holder Jr. deep­ened in the later years, and par­tic­u­larly in the run-up to the 2016 pres­i­dent elec­tion.

The depths of the an­tag­o­nism were ex­posed in an in­spec­tor gen­eral’s re­port last week look­ing into for­mer FBI Deputy Di­rec­tor An­drew McCabe, who was fired from the FBI ear­lier this year for mis­lead­ing mul­ti­ple in­ves­ti­ga­tions. While say­ing Mr. McCabe lacked can­dor in ques­tion­ing, some of it under oath, the re­port went much deeper, de­scrib­ing the rift be­tween the bureau and its po­lit­i­cal mas­ters at the depart­ment.

In­ves­ti­ga­tors de­tails one in­stance in Au­gust when Mr. McCabe got a call from a se­nior Jus­tice Depart­ment of­fi­cial who com­plained about the FBI’s “overt” ac­tions prob­ing the Clin­ton Foun­da­tion in the mid­dle of the cam­paign.

Mr. McCabe said he got the sense the Obama-era Jus­tice Depart­ment was telling him “to shut down” the probe. Later he called the ex­change as “very dra­matic” and said he’d never had a con­fronta­tion like that with the Jus­tice Depart­ment.

The re­port de­scribes the re­la­tion­ship be­tween the two agen­cies as “be­ing under great stress,” and said Mr. McCabe was caught in “an in­creas­ingly ac­ri­mo­nious fight for con­trol be­tween the Jus­tice Depart­ment and FBI pur­su­ing the Clin­ton foun­da­tion case.”

For­mer agents said the ac­ri­mony started be­fore the elec­tion.

One said the re­la­tion­ship frac­tured under Mr. Holder as agents in field of­fices across the coun­try did not trust Jus­tice Depart­ment lawyers, whom they saw as Wash­ing­ton bu­reau­crats try­ing use in­ves­ti­ga­tions for po­lit­i­cal ad­van­tage.

The Jus­tice Depart­ment, mean­while, had be­come frus­trated at the rank-and-file agents not al­ways fol­low­ing or­ders and, at times, strongly dis­agree­ing with su­pe­ri­ors.

“I know from talk­ing to some agents in the FBI at that time that there con­flicts be­tween the Holder DOJ and its pri­or­i­ties and how the FBI wanted to work cases,” said Danny De­fen­baugh, a 33-year FBI agent who re­tired in 2002.

“The FBI had al­ways taken pride in fol­low­ing the ev­i­dence to where it would lead and never al­low­ing pol­i­tics into their in­ves­ti­ga­tion de­ci­sions,” Mr. De­fen­baugh con­tin­ued. “But then the DOJ at times would say, ‘we don’t want you to do this.’”

One source of dis­agree­ment was Mr. Holder’s pres­sure on the FBI to in­ves­ti­gate lo­cal po­lice agen­cies for civil rights vi­o­la­tions.

The depart­ment opened more than 20 civil rights in­ves­ti­ga­tions into lo­cal po­lice depart­ments be­tween 2009 and 2014, more than dou­bling the num­ber of re­views from the pre­vi­ous five years.

Some in law en­force­ment, in­clud­ing the FBI, were de­mor­al­ized by the probes, be­liev­ing they were risk­ing their lives with­out any sup­port from Main Jus­tice in Wash­ing­ton, said a for­mer Jus­tice Depart­ment lawyer.

“Eric Holder waged an anti-po­lice cam­paign that he be­lieved in,” said J. Chris­tian Adams, who served as an at­tor­ney in the Jus­tice Depart­ment’s Civil Rights Divi­sion from 2005 through 2010. “He was so suc­cess­ful in merg­ing his ide­ol­ogy with the Jus­tice Depart­ment some peo­ple there didn’t even re­al­ize he was do­ing it.”

The bat­tle in­ten­si­fied in 2014 as the Jus­tice Depart­ment and the FBI field of­fice that would later in­ves­ti­gate for­mer Sec­re­tary of State Hil­lary Clin­ton went to war over the death of Eric Garner in New York City. Mr. Garner died in July of that year af­ter a New York City Po­lice Of­fi­cer con­fronted him for sell­ing un­taxed cig­a­rettes. The of­fi­cer was seen on video us­ing a choke­hold, pro­hib­ited by the New York Po­lice Depart­ment, to sub­due him.

FBI agents took over the case and op­posed charg­ing the of­fi­cer, a rec­om­men­da­tion sup­ported by New York fed­eral pros­e­cu­tors. At­tor­neys at the Jus­tice Depart­ment’s Civil Rights Divi­sion claimed there was clear ev­i­dence to the charge the of­fi­cer.

Then-At­tor­ney Gen­eral Loretta E. Lynch re­moved the FBI agents in­ves­ti­gat­ing the case, re­plac­ing them with agents from out­side New York. The move was de­scribed as “highly un­usual.” Ul­ti­mately, a fed­eral grand jury de­cided not to in­dict the of­fi­cer, Daniel Pan­ta­leo.

Stress from the Garner skir­mish was still fresh at the FBI and Jus­tice Depart­ment when the Clin­ton in­ves­ti­ga­tions be­gan. It had FBI of­fi­cials wor­ried about how much Wash­ing­ton would in­ter­fere with their work.

“Holder and Lynch to­tally politi­cized the Jus­tice Depart­ment,” said Hans von Spakovsky, a for­mer Jus­tice Depart­ment at­tor­ney who now works with The Her­itage Foun­da­tion. “There was no com­punc­tion about in­ter­fer­ing with a crim­i­nal in­ves­ti­ga­tion.”

But oth­ers say ten­sions are a re­sult of cul­tural dif­fer­ences en­demic to both or­ga­ni­za­tions, with one side tend­ing to­ward the hard-charg­ing crime-stop­pers and the other the more cau­tions le­gal wran­glers.

One com­pli­ca­tion is that FBI agents typ­i­cally deal with lo­cal U.S. At­tor­neys Of­fices, which are more ag­gres­sive and make de­ci­sions fairly quickly, said Ron Siev­ert, a for­mer Jus­tice Depart­ment at­tor­ney and cur­rent Univer­sity of Texas pro­fes­sor.

Mr. Siev­ert es­ti­mates that those lo­cal pros­e­cu­tors end up han­dling about 90 per­cent of FBI in­ves­ti­ga­tions, while of­fi­cials at depart­ment head­quar­ters in Wash­ing­ton chiefly get in­volved in po­lit­i­cal cor­rup­tion, na­tional se­cu­rity or in­ter­state drug traf­fick­ing cases.

“For years, Main Jus­tice had a rep­u­ta­tion for be­ing overly cau­tious,” Mr. Siev­ert said. “What you can do with one su­per­vi­sor’s sig­na­ture in the field you have to do with three or five in Wash­ing­ton be­cause ev­ery­one is think­ing about the po­lit­i­cal and le­gal ram­i­fi­ca­tions of each case.”

Mr. Siev­ert re­called his own dif­fi­culty get­ting a pro­gram ap­proved dur­ing his time at the Jus­tice Depart­ment. It took about fourth months to se­cure sup­port from each su­per­vi­sor in the chain of com­mand.

When his project was fi­nally green-lit by the at­tor­ney gen­eral him­self, Mr. Siev­ert was told that he now had to seek ap­proval from the Trea­sury and Com­merce depart­ments along with the in­tel­li­gence agen­cies — a process that would take about four more months for each depart­ment.

“At the U.S. At­tor­ney’s Of­fice, if you have a great idea that makes sense and le­gal, they will tell you to just go for it,” he said.

Mr. Adams said it could take years to re­pair the divi­sion, and it could re­quire a house­clean­ing of lead­er­ship at both the FBI and Jus­tice Depart­ment.

“The prob­lem is so vast and deeply imbed­ded in the Jus­tice Depart­ment, it will be an ex­tremely dif­fi­cult thing to dis­lodge,” Mr. Adams said.

Lew Schiliro, the for­mer head of the FBI’s New York field of­fice, said At­tor­ney Gen­eral Jeff Ses­sions needs to take the reins.

“It has to be Ses­sions,” he said. “The bureau re­ports to him and the Jus­tice Depart­ment re­ports to him, yet he’s been silent on the is­sue. He needs to be a strong at­tor­ney gen­eral.”


STRAINED RE­LA­TIONS: For­mer FBI act­ing di­rec­tor An­drew McCabe said he got the sense that the Obama-era Jus­tice Depart­ment was telling him “to shut down” the Clin­ton Foun­da­tion in­ves­ti­ga­tion.


Then-At­tor­ney Gen­eral Loretta E. Lynch re­moved the FBI agents in­ves­ti­gat­ing the Eric Garner case in 2014, re­plac­ing them with agents from out­side New York. Garner died af­ter a po­lice of­fi­cer con­fronted him and put a choke­hold on him.

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