Oversight Unable To Discover Which FBI Agents Leaked Clinton Investigation Info Because Goddamn Everyone Was Leaking Stuff

Failures

from the selective-transparency dept

Selective leaking has always been a part of the federal government’s day-to-day business. When there are narratives to massage, controlled leaking is tolerated. Leaks that make the government look bad tend to result in prosecutions, but leaks that act as highly unofficial PR or align with the motivations of the agencies they’re leaked from are largely ignored.

Every so often, though, oversight is asked to keep an eye on leaking, if only to make it appear that all leaks are considered equal. In the interest of perceived fairness, the FBI’s Office of the Inspector General has taken a look at the incidents surrounding the selective release of information about the investigation of Hillary Clinton’s use of a personal email server during her stint at the State Department under Barack Obama.

There were questions about political motivations — ones not helped at all by selective leaks about the investigation. This was on top of supposedly official actions, like then-FBI director James Comey’s decision to hold a press conference to announce the outcome of the FBI’s investigation. In the agency’s determination, what Clinton did was unwise and gave the appearance of impropriety, but was not illegal.

That would have been it. But shortly before the 2016 election, James Comey decided it was time for him to act unwisely and give off an air of impropriety by announcing the FBI would be reopening its investigation of Clinton and her email server, thanks to developments in an unrelated case. Comey’s actions were also questionable, but apparently not actually illegal.

The OIG tried to dig into the FBI’s use of selective leaking during this time period. And it has arrived at the conclusion that it’s almost impossible to accurately point fingers, much less discourage powerful federal agencies from doing whatever the hell they want to, policies and laws notwithstanding. (h/t Brad Heath)

The report [PDF] leads off with a summary of the undoubtedly frustrating investigation. First, it points out how things should be handled…

Among the issues we reviewed in that report were allegations that FBI employees improperly disclosed non-public information regarding the FBI’s investigation into former Secretary of State Hillary Clinton’s use of a private email server. FBI policies strictly limit the employees who are authorized to speak to the media, and require all other employees to coordinate with or obtain approval from the FBI’s Office of Public Affairs (OPA) in connection with such communications.

And follows that up with a resigned statement about how things actually are…

Nonetheless, as described in our 2016 pre-election report, we found that these policies appeared to be widely ignored during the period we reviewed. Specifically, in our analysis of FBI telephone records, FBI email records, FBI text, and Microsoft Lync instant messages, we identified numerous FBI employees, at all levels of the organization and with no official reason to be in contact with the media, who were nevertheless in frequent contact with reporters.

The Federal Bureau of Sunk Ships (feat. Loose Lips). This would be a national embarrassment if it weren’t so hilarious. The FBI screws over public records requesters on a regular basis and issues tight-lipped “no comments” or Glomars whenever it’s being scrutinized by critics. But apparently everyone on staff is handing out secrets to half the Rolodex whenever they’re feeling particularly chatty about politically-tinged investigations.

And if this seems damning, imagine what the OIG would have found if it was actually engaged in an investigation determined to root out criminal activity.

Because this was a non-criminal administrative misconduct review, there was no legal basis to seek a court order to compel Internet service providers to produce to the OIG the content of any personal email communications for these FBI employees.

As much as I’d like to see some federal agents suddenly jobless, I appreciate the restraint of the OIG, which would have been treading into First Amendment waters by seeking content of communications with journalists. All the same, it appears the FBI doesn’t really need to keep paying people to staff its Public Relations department. It has all the unofficial help it needs to get the word out.

Those who were caught chatting it up with reporters tended to pass the buck, offering the Inspector General facts not in evidence to justify their casual disregard of FBI policy.

Employees interviewed by the OIG generally claimed that they believed their contacts were either authorized by OPA or a field office Special Agent in Charge (SAC) or Assistant Director in Charge (ADIC) to provide background about an FBI initiative or completed investigation, or were personal in nature. Given the absence, in most instances, of any documentary evidence reflecting the substance of these communications, the OIG was unable to determine whether these communications were consistent with the explanations provided by the FBI employees or instead involved the sharing of non-public information with reporters.

Behold the Federal Office of the Future! It’s not just telecommuting and flexible staffing. It’s also paper trail-less, which probably helps the environment in some way. God bless America.

In conclusion: holy shit.

Our ability to identify individuals who have improperly disclosed non-public information is often hampered by two significant factors. First, we frequently find that the universe of Department and FBI employees who had access to sensitive information that has been leaked is substantial, often involving dozens, and in some instances, more than 100 people.

Second, although FBI policy strictly limits the employees who are authorized to speak to the media, we found that this policy appeared to be widely ignored during the period we reviewed. We identified numerous FBI employees, at all levels of the organization and with no official reason to be in contact with the media, who were nevertheless in frequent contact with reporters. The large number of FBI employees who were in contact with journalists during this time period impacted our ability to identify the sources of leaks. For example, during the periods we reviewed, we identified dozens of FBI employees that had contact with members of the media.

Forget FOIA. Maybe all anyone needs is a barely targeted “request for comment.” And it would be ridiculous to believe the FBI is the only agency that behaves this way. The federal government — as multiple presidents have discovered — is staffed by the leakiest bunch of leakers who ever leaked. The problem isn’t the leaks. It’s the selective prosecution of leaks. If the leaks serve the government, they’re just part of the public service infrastructure. But if they embarrass the government or expose wrongdoing, they’re suddenly criminal acts. And that unequal treatment cannot be addressed by internal investigations. It’s a mindset problem — one the government has no intention of changing, no matter who’s occupying the Oval Office.

Filed Under: doj, fbi, hillary clinton, inspector general, james comey, journalism, leaks, oversight, reporting, transparency