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The FBI deserves scrutiny for its botched Clinton probe, but not a GOP witch hunt

The Republican obsession with the idea that the FBI is out to get Trump is obscuring more important questions.
Image: Hillary Clinton testifies before the House Select Committee on Benghazi
Hillary Clinton testifies before the House Select Committee on Benghazi on Capitol Hill on Oct. 22, 2015.Chip Somodevilla / Getty Images file

Depending on your political persuasion, what’s happening in the FBI right now is either a “cleanse” or a “purge.” This is the kind of overheated language that froths up when partisan political warriors steep themselves in conspiratorial thinking and persecution complexes, and it exemplifies precisely why Congress seems unable to treat anything related to the law enforcement agency rationally.

The underlying issues that have resulted in this renewed focus on the FBI — the potential abuse of FISA courts and the “unmasking” of Americans swept up in foreign surveillance to achieve political ends — are legitimate issues of good and limited governance that should concern everyone. But in the process of shedding light on a potential abuse of federal power, the GOP has become enamored with the notion that the FBI is a partisan organization that is out to get President Donald Trump.

Casual observers could be forgiven for thinking FBI Deputy Director Andrew McCabe’s snap decision to take an early retirement this week supports the GOP’s claim that the bureau really might be tainted by a political scandal. The GOP might have had an easier time advancing that narrative if they had not already hopelessly muddled their argument. Because the bureau is dealing with a political scandal at the moment, but it has less to do with Donald Trump than Hillary Clinton.

Conservatives are right to question the Obama-era Justice Department’s handling of Hillary Clinton’s investigation; mounting evidence is on their side. Unfortunately, they’ve conflated their frustration with the conduct of the Clinton investigation with the handling of the Trump probe, and that conflation has confused otherwise persuadable observers.

Conservatives have conflated their frustration with the conduct of the Clinton investigation with the handling of the Trump probe.

Before Robert Mueller’s probe preoccupied the minds of every Republican invested in the success of the Trump administration, the GOP argued that the FBI’s investigation into Hillary Clinton’s behavior as secretary of state was botched. There’s plenty of evidence to support that circumspect claim, but this week’s bombshells drove their point home.

On Jan. 29, FBI Director Christopher Wray sent a message to his colleagues in the bureau alluding to the fact that McCabe’s decision to take a terminal leave of absence seven weeks earlier than expected was a preemptive response to a forthcoming report by the Justice Department’s Inspector General’s Office. That report is expected to review the bureau’s handling of the investigation into Clinton’s “homebrew” server and whether McCabe should have recused himself from that investigation. It seems increasingly clear, however, that at the very least McCabe’s decision to forego recusal was a mistake.

McCabe’s wife, Dr. Jill McCabe, received nearly half a million dollars in 2015 from a political action committee controlled by former Democratic Virginia Governor Terry McAuliffe to run for state Senate as a Democrat. McAuliffe was also a former chairman of the Democratic National Committee and the chairman of Hillary Clinton’s 2008 presidential campaign. Due to his wife’s political activity, McCabe, who was the assistant director for the FBI’s Washington field office, recused himself from investigations related to political figures in Virginia.

But, upon his promotion to deputy director, McCabe declined to recuse himself from investigations involving Clinton, which he went on to oversee. Amid scrutiny, McCabe belatedly recused himself from Clinton-related investigations just one week before the 2016 presidential election, but it was already too late.

Even though the period of time when his wife was politically active did not overlap with McCabe’s role in overseeing those investigations, his decision to recuse himself from some investigations that involve political activity but not others — including a case involving a nominee for the presidency — was an inexplicable oversight.

Trump and his allies have a tendency of stepping on their own narrative, even when it is a favorable one.

But Trump and his allies have a tendency of stepping on their own narrative, even when it is a favorable one. The president’s habit of expurgating his unfiltered thoughts about the innermost workings of the government on Twitter, and McCabe has been a repeat target of the president’s social media missives. Trump has reportedly probed McCabe about his personal politics and insulted his wife. He has publicly pressured McCabe to resign, which is a misuse of his authority. The Trump administration was, however, perfectly justified in encouraging McCabe to retire as early as possible.

All Americans, regardless of partisan affiliation, should be concerned by the FBI’s handling of Clinton’s case. Why did former FBI Director James Comey deliver a scathing public indictment of Clinton’s conduct in June of 2016, only to announce that no charges would be forthcoming? If the bureau found her behavior legally above board, it was not the director’s place to clear his throat and attack her conduct.

That speech led House Republicans to insist that Comey keep them abreast of any new developments in the Clinton case. So when duplicative state department emails appeared on Anthony Weiner’s computer amid an investigation into his improper communications with a minor, Comey was obligated to inform Congress that the investigation had been essentially reopened.

According to the Washington Post, McCabe may have been responsible for the timing of that letter, which was released to the public 12 days before the election. The outgoing FBI deputy director allegedly knew about the emails on Weiner’s laptop as early as late September, and he was reportedly urged to take that information to Comey much sooner than he did. Why McCabe sat on this information for weeks is unclear, but that decision led to the Oct. 28, 2016 letter to Congress and undoubtedly changed the course of history.

Comey’s conduct in 2016 led Deputy Attorney General Ron Rosenstein to draw up a memo chastising the former FBI director. His June 2016 speech was a political act, and from that point on the FBI director became a political actor on the presidential stage. McCabe’s links to Democratic politics in Virginia only reinforced the notion that the bureau was not as apolitical as it tried to present itself and invited the scrutiny of an administration led by a president who is facing his own FBI investigation.

Image: Devin Nunes
Chairman of the House Intelligence Committee Devin Nunes (R-CA) arrives for the State of the Union address.Joshua Roberts / Reuters

You’ll notice that none of this has anything to do with the special counsel investigation into Donald Trump’s campaign, a fantastical “secret society” within the FBI, or Rep. Devin Nunes’ infamous “memo.” In the effort to preemptively discredit whatever Robert Mueller’s investigation comes up with — and independent counsels always come up with something — Republicans in Congress and their allies in the conservative media have become invested in the idea that there is a “conspiracy” within the FBI to undermine the Trump administration.

That’s the word Rep. Bob Goodlatte, Chairman of the House Judiciary Committee, used to describe the texts shared between former FBI agent and one-month veteran of the Mueller probe, Peter Strzok, and his mistress, FBI attorney Lisa Page. When the “secret society” they described in their anti-Trump texts turned out to be utterly banal, Republicans who pushed that narrative quietly abandoned it. But they will not recover the integrity they sacrificed in jumping down that rabbit hole.

Republicans in Congress have succumbed to the political necessity of insulating their party’s leader from the potential legal consequences of his actions. In the process, however, they have led voters astray. The GOP’s responsible elements should be making the case that the investigations into Clinton and Trump are distinct, if only to avoid muddying the waters, particularly given the grave significance of the abuses they are alleging.

Unless muddying the waters is the objective.

Imagine if Republicans had kept their powder dry for this moment. They could claim vindication. The Justice Department’s inspector general’s office has all but validated their contention that the bureau mishandled the Clinton case. That revelation alone would have sufficiently cast doubt on the Obama-era Justice Department’s impartiality. And in turn, that would have at least superficially supported the notion that the warrant which allowed investigators to surveil Trump campaign operatives was designed to advance a political end.

Instead, in their haste to discredit threats to Trump’s legitimacy, Republicans made a hash of the case against FBI’s investigation into Clinton’s conduct. Thus, any real revelations have been undermined. That’s a tragedy. Rooting out corruption and negligence in government and law enforcement is in everyone’s interests.

Noah Rothman is the Associate Editor of COMMENTARY Magazine.