By Paul Sperry, RealClearInvestigations
September 30, 2019
As Justice Department Inspector General Michael E. Horowitz finalizes his probe of allegations of abuses surrounding the surveillance of a Trump campaign aide, some colleagues and Republican lawmakers say they have no doubt he's conducted a tough, impartial investigation. They expect him to deliver a hard-hitting report, due for release next month.
Others are more skeptical. While acknowledging that Horowitz is widely respected, these critics say his work has long been hampered by biases, conflicts and a tendency to play favorites, as in past probes of former FBI Director James Comey, whom Horowitz worked under in New York.
Their main complaint is that he pulls his punches.
Horowitz’s investigation of the FBI's handling of the Hillary Clinton email case, for example, concluded that many of Comey’s explanations for his dubious actions were “unconvincing," while stopping short of saying that Comey lied to investigators. Comey asserted implausibly that he delayed acting on a mountain of new Clinton email evidence discovered on a laptop in New York because he was never briefed about it until nearly a month after his top aides found out about it in September 2016.
In probing whether Comey illegally leaked classified information to the New York Times, Horowitz in the end accepted his argument that the memo of a conversation with President Trump was sensitive but “not classified” – even though the memo contained information about the FBI's ongoing counterintelligence investigation of the president’s national security adviser.
“I see a pattern of him pulling up short and trying to be a bit of a statesman instead of making the hard calls,” said Chris Swecker, a 24-year veteran of the FBI who served as assistant director of its criminal investigative division, where he oversaw public corruption cases.
"I’m afraid he’s going to do the same thing with the FISA report – a finding that sounds tough, but in the end, ‘No harm, no foul,’ ” Swecker added, in reference to Horowitz’s probe of possible Foreign Intelligence Surveillance Act abuses against Carter Page, the former Trump adviser.
Horowitz’s inquiry is separate from the wider one being pursued by prosecutor John Durham, whom Attorney General William Barr tapped shortly after taking office this year to investigate the origins of the FBI’s Trump-Russia investigation and the "political surveillance” of the Trump campaign. Durham’s probe is also focused on the CIA’s role in the case.
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Skeptics fear that Horowitz, a Democrat and Obama appointee, is more political than widely believed, and may be naturally inclined to protect the FBI and Justice despite possible corruption during the Obama administration.
Federal records show Horowitz volunteered on the political campaigns of several Democrats while in college and later donated to the campaign of Colorado Sen. Michael Bennet, a former colleague who is seeking the 2020 Democratic presidential nomination – and who has slammed Trump's praise of Russian President Vladimir Putin. Horowitz, moreover, is married to a former political activist who helped run campaigns for liberal Democrats before producing programming for CNN out of its Washington bureau. Records show his wife, Alexandra Kauffman Horowitz, also contributed to Barack Obama’s first presidential campaign.
Still, many Republican leaders say they have faith that his forthcoming report on the FBI and alleged FISA abuses will include recommendations for criminal prosecution.
"I do not believe that Jim Comey will get off,” House Minority Leader Kevin McCarthy predicted.
Several former inspectors general interviewed for this article said that’s exactly what they believe will happen. They do not expect Horowitz to issue a criminal referral against Comey in the FISA case, which has grinded on for 18 months. These other IGs note that under federal regulations, an inspector general must report evidence of potential violations of federal criminal law to the attorney general as soon as it is uncovered, rather than deferring such action until the completion of their report.
Although Horowitz says he conducted more than 100 interviews of witnesses, including Christopher Steele, who wrote the salacious and unverified anti-Trump dossier the FBI relied on to obtain the wiretap warrant, he failed to interview Page, the target — and alleged victim — of the controversial warrant. Page confirmed to RealClearInvestigations that no investigator from Horowitz’s office asked him questions.
That is not the first time Horowitz has failed to interview key subjects. With the help of seasoned federal investigators, RealClearInvestigations deconstructed previous probes by his office, combing through the footnotes and appendices of his reports. RCI found numerous instances in which Horowitz stopped short of pursuing evidence and was content to take high-level officials at their word, even in the face of conflicting evidence.
Horowitz, who declined to comment for this article, has a reputation for integrity and the respect of his peers – the government’s 73 other IGs recently elected him to a third term as chairman of the Council of the Inspectors General on Integrity and Efficiency – but the RCI review uncovered a tendency to defer to those in authority.
'Arranged an Agreement'
Horowitz, for example, touted the 17-month probe into the widely criticized FBI investigation of Hillary Clinton’s emails as “thorough” and “comprehensive.”
But the inspector general repeatedly declined to use his subpoena power, trusting key players to produce evidence on their own. He allowed the two lead FBI officials who ran both the investigation of Clinton and the probe of the Trump campaign -- FBI Counterintelligence Chief Peter Strzok and FBI lawyer Lisa Page – to decide which communications on their personal devices and email accounts were FBI "work-related" and which were “personal,” according to footnotes and Strzok’s testimony. Both claimed they couldn’t find any work-relevant evidence to hand over, even though text message exchanges between them on their FBI phones indicated they had discussed FBI meetings in private Gmail accounts and iMessages.
Horowitz subsequently learned through interviews that Strzok drafted classified investigative documents and communicated with Page about them on their private email in violation of department rules, which require officials to communicate through government channels -- the same basis for the Clinton email probe. Yet neither was compelled to turn over the emails.
"The inspector general and I arranged an agreement where I would go through my personal accounts and identify any material that was relevant to FBI business and turn it over,” Strzok said in testifying before Congress. "It was reviewed. There was none. My understanding is the inspector general was satisfied with that action.”
Horowitz never referred Strzok for criminal sanctions for maintaining court-sealed documents on an unsecure computer. Strzok was nonetheless fired last year by the bureau for misconduct. He is now suing the department for unlawful termination.
The IG also failed to demand access to Comey’s private Gmail account, even though he, too, used it for official FBI business.
Horowitz is widely credited with uncovering biased texts sent by Strzok and Page, who were also having an extramarital affair, on their bureau-issued phones. In those texts they rooted for Clinton to win the 2016 election and promised to “stop" Trump – at a time when they were supposedly investigating the presidential candidates. But Horowitz found those messages only after congressional Republicans pressed him to recover several months’ worth of Strzok-Page texts the FBI claimed were missing from its archives. The inspector general brought the texts to the attention of Special Counsel Robert Mueller, who'd retained the two agents for his investigation, on July 27, 2017. But he kept the explosive information from Congress for the next five months, and shared it with legislators only after the media found out about it.
The inspector general still has not recovered all the missing texts. It appears he has given up trying, having accepted the FBI’s explanation that the records were lost in a technical snafu the bureau blames on the IT vendor that wrote the software for its archiving system.
Horowitz did reach out to the vendor, but it refused to cooperate with his inquiry. “The vendor preferred not to share specific details,” he wrote last December in a separate report on the missing records. Horowitz elected not to subpoena that information.
Horowitz also stated that it was “unlikely that Strzok and Page attempted to circumvent the FBI’s text-message collection capabilities” even after discovering that the iPhone that Page used while working for Mueller could not be found after the IG’s office asked to see it. Her device mysteriously turned up almost eight months later with all its data wiped clean.
Horowitz’s report admonished Strzok and Page for their overt “political bias," which included expressing their support for Clinton while describing Trump as a “disaster” and a “f***-ing idiot.” Yet he somehow concluded that their views did not influence their investigative decisions.
Horowitz asserted that they merely exercised “extremely poor judgment” – even though Strzok’s August 2016 text to Page strongly implies a willingness to take official law enforcement action to sabotage Trump’s presidential election chances: In response to her question -- “[Trump’s] not ever going to become president, right? Right?!” – Strzok replied: “No. No he won't. We’ll stop it.”
“Strzok’s state of mind was clear,” former FBI man Swecker told RCI. “That his bias was coming into play was an easy call to make, but Horowitz danced around it.”
In a report echoing the FBI’s determination that Hillary Clinton had been “extremely careless” but not “grossly negligent” in her use of email, Horowitz essentially cleared the FBI agents of fixing the case for Clinton while still acknowledging several irregularities in the email probe. For example, the FBI did not push for a grand jury to compel testimony and obtain the vast majority of evidence, choosing instead to offer unusually generous immunity deals to Clinton aides. Comey drafted a statement exonerating Clinton months before agents interviewed her.
“Undeniably, there was bias against Trump [at headquarters],” said former federal prosecutor Andrew McCarthy, who is author of the new book, “Ball of Collusion: The Plot to Rig an Election and Destroy a Presidency.” “Clinton was not going to be charged no matter how much evidence there was.”
McCarthy faults Horowitz for failing to draw what he views as an obvious connection between investigators’ bias and their kid-gloves treatment of Clinton. “The inspector general was wrong to conclude that this bias could not be deemed causative of any particular investigative decision in the Clinton emails case,” McCarthy said.
Although Horowitz did not respond to requests for comment, in House testimony last year he asserted, “I don’t think anyone can accuse us of pulling our punches.”
'Really Smells Bad'
Critics say that comment is further belied by Horowitz’s response to the FBI’s delay in obtaining a warrant to search a trove of Clinton emails discovered on a laptop used by the former Rep. Anthony Weiner, who was the husband of Clinton’s top aide, Huma Abedin, and who was being investigated for sex crimes.
The FBI’s New York office alerted FBI headquarters about the emails in late September 2016 — more than two months after Comey’s press conference in which he unilaterally cleared Clinton. Records show Strzok was briefed by then-Deputy FBI Director Andrew McCabe right after McCabe had been briefed on the shocking find by the head of the New York office on Sept. 28, 2016, during both a video teleconference and follow-up phone calls. “Everyone realized the significance of this,” recalled one conference participant.
That afternoon, records show, McCabe met privately with Comey in the director’s office. McCabe and Comey also exchanged calls later than evening, according to phone records.
Yet Comey denied being briefed that day about the additional Clinton emails found on the Weiner laptop. McCabe swore to Horowitz’s investigators that he could not recall what they discussed in their flurry of phone calls that night, and neither he nor Comey could remember meeting at all that day.
Comey said he might have heard something in passing about the newfound Clinton emails a couple of weeks later, in October; but even then, he swore it didn’t “index” with him because he didn’t know Abedin was closely connected to Clinton – even though she vice-chaired Clinton’s campaign, served as her deputy chief of staff at the State Department and had worked for her since 1996.
In short, Comey maintained he wasn’t briefed on the significant case development at the same time that virtually all his lieutenants were told about it in detail. “I’m mystified,” he told Horowitz’s office, over why he, as director, was allegedly left in the dark.
“The notion that I knew something important was on that laptop and did what — concealed or hid it or something? — is crazy,” he insisted.
Horowitz accepted Comey’s account, never confronting him with call records showing that on the night of Sept. 28, he and McCabe had a nearly two-minute conversation starting at 7:34 p.m., followed by a nearly 10-minute talk beginning at 8:36 p.m. that was initiated by Comey. Horowitz never pinned down Comey on which urgent matter he and his deputy discussed late that night, just hours after McCabe had found out about the discovery of hundreds of thousands of emails in a high-profile case Comey had personally — and very publicly — closed.
“That should have been pressed on and followed up,” Swecker asserted. (In a 24-page statement Horowitz prepared last year for a Senate hearing to explain his findings, he omitted any mention of Comey and McCabe meeting and calling each other on Sept. 28.)
It wasn’t until late October, after the FBI’s New York office complained to Justice officials that headquarters was dragging its feet, that the bureau secured a warrant to search Weiner’s laptop. It then falsely claimed to have searched the 694,000 emails in a few days before exonerating Clinton once again, just days before the election.
“That whole thing really smells bad,” Swecker said. "Why they sat on that evidence for a month should have been aggressively pursued.”
McCabe Gets Special Treatment
Horowitz also failed to forcefully challenge McCabe about what appeared to be his own selective memory and inconsistent statements regarding the laptop and emails, even though McCabe had repeatedly “lacked candor” providing answers to federal agents working for Horowitz on another case regarding McCabe authorizing leaks to the media during the 2016 campaign (while blaming agents at another office for them).
Swecker says McCabe clearly lied about the leaks and only came clean when he found out Horowitz had his deputy Page’s texts, which he thought were irretrievable. The texts proved McCabe was responsible for the leaks, despite his denials.
“They blindsided him with her texts, then he comes clean,” Swecker said. Horowitz concluded in his report that McCabe’s “lack of candor, including under oath, on multiple occasions" violated “FBI policy,” but stopped short of saying he broke the law, referring that matter to the attorney general. Swecker said it was another example of Horowitz softening his blows.
Now the case is stalled at the U.S. attorney's office in Washington, D.C. It has dragged on for months, with prosecutors engaged in discussions with McCabe’s defense attorneys over whether to pursue an indictment.
Swecker says it’s a pretty clear case of lying to a federal agent in violation of Section 1001 of the U.S. criminal code.
“We’re all scratching our heads,” he said, referring to his former FBI colleagues who also believe McCabe is guilty. “If you don’t indict McCabe under that statute, just throw that statute out."
On CNN, his new employer, McCabe earlier this month insisted he never intentionally lied. RCI’s investigation has found that this is not the first time Horowitz had the evidence to make a tougher call on McCabe.
The IG’s review of the Clinton investigation also included an examination of a possible conflict of interest when McCabe’s wife was campaigning for a Virginia state Senate seat in 2015. Running as a Democrat, Dr. Jill McCabe received hundreds of thousands of dollars in donations from the super PAC controlled by Virginia Gov. Terry McAuliffe, who had run Clinton’s previous campaign for president.
Jill McCabe's campaign, which ended in November 2015, overlapped with her husband's involvement in the Clinton email case (which included his sitting in on investigative meetings) by at least two months. He was also supervising the bureau’s investigation of the Clinton Foundation at the time.
Aware of McCabe’s high-level position at the FBI, McAuliffe personally recruited his wife four days after the New York Times broke the story of Clinton using an unauthorized server in early 2015. That same day, as McCabe confirms in his recent memoir, McCabe and his wife met with McAuliffe at the governor’s mansion in Richmond, Va., to discuss her run for office and fundraising efforts to support her.
Was McCabe essentially bribed to look the other way? Horowitz concluded he was not bought off, even though he acknowledged in his report that "we did not investigate individual donations to Dr. McCabe’s campaign committee” to see if they were made because her husband was a top FBI executive.
In another questionable gap in his investigation, the inspector general opted not to interview McAuliffe or Dr. McCabe. McAuliffe himself was under investigation by the FBI – at the same time – for accepting possibly illegal Chinese donations to his own campaign, an issue never mentioned and apparently left unexplored by Horowitz in his investigation. (McAuliffe maintained his innocence in the case, which was closed.)
The FBI’s general counsel told Horowitz he thought McCabe should have recused himself from the Clinton cases. But he refused to do so until November 2016 – long after Clinton was exonerated by Comey – and only after the Wall Street Journal exposed the large haul of Clinton-tied donations his wife received, which McCabe did not report on his FBI financial disclosure form.
While Horowitz found McCabe’s recusal delay “troubling," he accepted McCabe’s testimony that he had nothing to do with his wife’s campaign and was not even aware of her donations until he read about them in the paper, even though he:
- personally met with her sponsor and fundraiser McAuliffe;
- drove her to campaign stops;
- attended one of her candidate debates;
- discussed the campaign with her on FBI equipment;
- appeared in a family photo used in a campaign mailer; and,
- posed with her wearing her official campaign T-shirt for a photo distributed on social media to promote her candidacy.
Were such actions violations of the Hatch Act, a federal law that prohibits federal employees from engaging “in political activity in an official capacity at any time”? If so, the topic didn’t interest Horowitz, who accepted on face value the FBI’s argument in a letter to the Senate that he played no formal role in his wife’s campaign and that his activities were permissible under the law.
Former inspectors general found this questionable, especially in the wake of a Justice Department memo issued in 2014, and again in early 2016, warning department and FBI employees to "be particularly mindful of these rules in an election year."
“Everybody and their mother knew he was engaged in political activities,” former Pentagon Inspector General Joseph E. Schmitz said. “Horowitz could have easily seen to it that he was branded unfit for office and banned from the federal payroll for up to five years.” Schmitz added that the Hatch Act is not a criminal statute and does not require the same level of evidence to find a violation.
Cutting Comey Some Slack
Horowitz’s critics say the IG’s August report giving Comey a pass for leaking what bureau veterans say was classified information to the press is perhaps his biggest cop-out.
They argue that Horowitz failed to question how Strzok arrived at his determination that the memo Comey leaked to The New York Times was not classified. Strzok retroactively marked it "For Official Use Only," even though it cited the counterintelligence investigation of retired Lt. Gen. Michael Flynn, Trump’s first choice as national security adviser. Normally an internal FBI document mentioning the subject of an ongoing counterintelligence investigation is automatically deemed classified. Even when Strzok marked that memo as FOUO – after the fact, in July 2017 – Flynn was still under investigation.
“The idea that the subject of a counterintelligence investigation was unclassified is ridiculous. The very existence of a counterintelligence investigation is classified at least Secret,” said former FBI agent and lawyer Mark Wauck, who worked on such investigations for the bureau dealing with Russia.
Strzok at least initially worried it did contain secret information. After it was revealed to have been leaked, he sent agents to New York to scrub the computer that received the Comey memo.
“It’s all too convenient that Strzok would label the one memo his boss had leaked to the media as unclassified,” said Michael Biasello, a 27-year veteran of the FBI. "It was the difference between violating DOJ rules and breaking the law.”
Added Biasello, “It looks like Horowitz just played along” with the bureau’s efforts to gloss over the classified nature of the memo.
Benefit of the Doubt
At virtually every turn, the inspector general gave top brass the benefit of the doubt.
“He has bent over backwards to provide cover for a former colleague,” Biasello said, referring to Comey.
In the early 1990s, Horowitz worked under Comey at the department’s Southern District of New York office. Comey was deputy chief of the criminal division, and Horowitz was an assistant U.S. attorney.
Recounting their days together in Manhattan, Horowitz has praised Comey as an aggressive prosecutor, but one who he says was careful not to abuse his power.
''Jim was not a prosecutor who was afraid to use all the available tools in serious cases as long as you were doing it within the law,” he told the New York Times in 2007.
Horowitz has not disclosed his past relationship with Comey in any of his reports examining him or FBI activities under his command. Nor has he recused himself from any part of his investigations.
Critics also say Horowitz’s decisions may be clouded by his own political biases, which he’s kept well-guarded over the years.
As a college student in Boston in the 1980s, Horowitz volunteered to work on the political campaigns of several Democratic politicians, including Rep. Barney Frank, an outspoken liberal who retired in 2013. He also worked in Frank’s office from 1982-1984, according to a Senate questionnaire Horowitz filled out during his IG confirmation hearing.
Horowitz’s only known campaign donation was to a liberal Democrat who routinely bashes Trump and is now running to take his job as a 2020 presidential candidate. In 2010, federal election records show Horowitz contributed $1,000 to Democratic Sen. Michael Bennet, a friend and former colleague who campaigned for Clinton in the last election and downplayed her use of the unsecured email server she set up in her basement to send and receive classified information.
Following Trump’s upset victory, Bennet demanded the Justice Department launch a special investigation into his Russian connections, claiming “Putin couldn’t ask for a better friend than [Trump].” After Mueller cleared Trump and his campaign of conspiring with Russia during the election, Bennet urged Congress to continue to investigate the president.
Bennet's brother happens to be the editorial page editor of the New York Times -- the newspaper that received the leaked Comey memo Horowitz concluded was not classified.
Records show Horowitz’s wife has donated money to Democratic candidates, as well, including $2,300 to Barack Obama’s campaign in 2008, the maximum individual contribution allowed. In addition, she gave $500 to the failed congressional campaign of Democrat Jon Jennings, a former aide to President Clinton.
Like her husband, Alexandra Horowitz also worked on Democratic political campaigns. In 1988, she served as a press aide to Michael Dukakis during his presidential bid, before flacking for Democratic Congressman Byron Dorgan. She later worked more than a decade as a producer for CNN and PBS.
Horowitz got his start in Washington during the Clinton administration. He moved there in January 1999 to work for Attorney General Janet Reno and her deputy Eric Holder at the Justice Department.
In 2011, Obama tapped Horowitz to serve as the department’s top internal watchdog under Holder, then the attorney general. His first major report came the next year when he investigated the "Fast and Furious" gun-running scandal, in which federal officials allowed the illegal sale of firearms to people connected to Mexican drug cartels in order to track them. The inspector general ended up referring 14 department employees for discipline in the deadly debacle, which resulted in the death of a Border Patrol agent, but they were mostly low-level personnel, including ATF field agents.
‘Fast and Furious’ Slap on the Wrist
Horowitz, meanwhile, absolved Holder of wrong-doing in his investigation even though Congress implicated Holder and held him in contempt for refusing to turn over some 75,000 documents and cooperate in its investigation.
In his final report, IG Horowitz accepted Holder’s claim he was not aware of the deadly border operation, and did not offer an opinion about whether Holder should have known.
He also let top Holder aide Lanny Breuer off with no more than a slap on the wrist, even though Republican lawmakers accused him of making “demonstrably and materially false” statements in a 2011 letter to Sen. Chuck Grassley of the Judiciary Committee. Horowitz and Breuer were old friends dating back to the Clinton years, and he had previously written a letter in support of Breuer to be head of the criminal division.
“I think you were a little soft on Lanny Breuer,” then-Rep. Jason Chaffetz, R-Utah, scolded Horowitz in a subsequent House hearing.
So far there have been few serious consequences for department big shots from Horowitz's findings, even for McCabe. Trump supporters hanging their hopes on “straight-shooter” Horowitz getting to the bottom of alleged FBI surveillance abuses during the 2016 election could be disappointed.
Even if he does produce a tough report, it’s not likely to stay that way, department insiders say. They expect it to be watered down especially after Comey, Strzok, McCabe, Page and other officials mentioned in it get their own chance to make changes, reviewing it for “accuracy.”
Swecker says he's already given up on Horowitz holding dirty agents accountable and is putting stock in prosecutor Durham’s wider probe into Trump-Russia’s origins.
“Durham is serious,” the former FBI official said, “and he has indictment authority.”