James Comey is liable to be treated harshly—but not in a way that helps Donald Trump.
Breaking news: a leaked portion of the forthcoming report by the Department of Justice inspector general apparently strongly criticizes former F.B.I. director James Comey for violating department regulations when Comey publicly announced an end to the investigation of Hillary Clinton’s handling of government e-mails.
Except that isn’t really . . . news. Comey has been under bipartisan fire pretty much nonstop ever since he finished delivering his 15-minute verdict on the morning of July 5, 2016. The criticism was revived, with even greater intensity, when Comey notified Congress that he was reopening the probe less than two weeks before Election Day, because a laptop belonging to disgraced former congressman Anthony Weiner appeared to contain e-mails related to Clinton. Comey has long been accused of breaking D.O.J. precedents by making public pronouncements. His defense has been that he was dealing with an unprecedented situation, and that he faced two bad choices: to “speak” or to “conceal” what the F.B.I. was doing—which many prosecutors, who choose not to speak all the time, consider a false dichotomy.
This afternoon, two days after President Donald Trump complained on Twitter that the report was taking too long, inspector General Michael Horowitz announced that he will release it on June 14, which happens to be Trump’s birthday. Horowitz has conducted a 17-month- investigation, and even if he merely ratifies the existing consensus it will carry new weight. Partly because of who Horowitz is: a low-key career prosecutor and investigator who has worked in both Republican and Democratic administrations and is regarded as competent and fair-minded, if overly concerned with being seen as fair-minded. “Mike has an independence and a moral compass,” says former U.S. Attorney Mary Jo White, who was Horowitz’s boss at S.D.N.Y. “I’m not naïve, I understand the pressures, but I have complete confidence he’ll call it like he sees it. And you know you’re going to get killed from all sides in such a partisan environment. He can’t control how the report is received.” Style will matter, too: if Horowitz, as ABC News Radio reported, labels Comey’s conduct “insubordinate,” that will add a harsh edge to his judgment. But the substance of Horowitz’s report is ultimately what counts most—and, perversely, what could count least.
“The I.G. report is important for the historical record, to establish that what Jim Comey did was inappropriate, so that future F.B.I. and D.O.J. officials know they can’t cross those lines,” says Matthew Miller, a top Justice Department spokesman in the Obama Administration. “It’s also important because the facts refute the president’s constant gaslighting that the F.B.I. was somehow intervening in the election to hurt him, when we know the opposite is true.”
Mimi Rocah is a former federal prosecutor and, like inspector general Horowitz, an alumnus of New York’s Southern District United States Attorney’s office. “Trump and Rudy Giuliani are pushing the idea that the F.B.I. was out to get Trump,” she says. “But if Horowitz is finding that Comey made a bad decision under tough circumstances, and that decision hurt Hillary Clinton, Trump and Giuliani can’t possibly square that conclusion with the narrative they’re trying to push.”
Logic has taken a beating these past two years, however. The president and his allies will no doubt spin any Horowitz criticism of Comey to try to back up Trump’s contention that he was completely justified in firing the F.B.I. director, and that it had nothing to do with obstructing justice. “Trump doesn’t need to have taken an action for one purpose, only, to have it be obstruction,” Rocah says. “Now that we know Trump was 100 percent involved in covering up the Trump Tower meeting, through Don Jr.’s statement to the Times, it strengthens the idea that other things Trump has done—including but not limited to firing Comey—were for the purpose of derailing the investigation. Prosecutors never look at one thing in isolation. What’s the pattern?”
Horowitz’s report might uncover new examples of dubious judgment that would bolster Trump’s case, particularly when it comes to the role of former attorney general Loretta Lynch, or the F.B.I.’s decision not to aggressively probe the Clinton Foundation. The report could also widen the rift between Comey and his former deputy, Andrew McCabe, if their accounts further diverge.
Horowitz will testify about the report before the Senate Judiciary Committee on June 18, but his involvement in the Trump-F.B.I.-Russia drama won't end there—actually, it's expanding The president has badgered his attorney general, Jeff Sessions, and the deputy attorney general, Rod Rosenstein, to look into whether the bureau planted a spy in Trump’s 2016 campaign. Sessions is officially recused from dealing with such issues; Rosenstein, trying to appease Trump and protect special counsel Robert Mueller, agreed to ask Horowitz to check into the matter, a request the inspector general can’t really refuse. Horowitz’s team also recently interviewed Peter Strzok, the F.B.I. agent who led the bureau’s Clinton e-mail probe before going to work for Mueller—and then was booted by Mueller for exchanging Trump-bashing texts with another investigator, Lisa Page. Horowitz’s team wanted to know about a FISA application to monitor Trump campaign adviser Carter Page, an episode that the president and his supporters have also used to try to undermine the Russia investigation.
“The I.G. does not exist to disprove presidential conspiracy theories,” Miller says. “There are no credible claims of misconduct to date in the investigation into the president’s campaign. What’s really troubling is that Rosenstein and Sessions have established that a president can ask for a counter-investigation into a lawfully predicated investigation into his campaign, and he can get it based on no facts and no evidence. It’s very, very dangerous.”