Rashomon on the Potomac

I don’t believe I have ever encountered a more Rashomon-like reaction to anything than the reaction to the Inspector General’s report on the FBI investigation of the Clinton email server and former Director James Comey’s actions in 2016. To refresh your memory Rashomon is a Kurosawa movie about a rape and murder. Over the course of the movie each character relates his or her account of the incidents and they could hardly be more divergent. The movie was remade here as The Outrage, an early feature performance by William Shatner.

The complete text of the report is here. Of the 500 some-odd pages, I have read the 12 page “Executive Summary” and a few select passages.

Some people, particularly those who are anti-Trump, see it as a complete exoneration of the FBI and the investigation. Consider these statements, from the “Conclusions” beginning on p. 497:

While we did not find documentary or testimonial evidence that improper considerations, including political bias, directly affected the specific investigative actions we reviewed in Chapter Five, the conduct by these employees cast a cloud over the entire FBI investigation and sowed doubt about the FBI’s work on, and its handling of, the Midyear investigation. It also called into question Strzok’s failure in October 2016 to follow up on the Midyear -related investigative lead discovered on the Weiner laptop. The damage caused by these employees’ actions extends far beyond the scope of the Midyear investigation and goes to the heart of the FBI’s reputation for neutral factfinding and political independence.

or this

While we did not find that these decisions were the result of political bias on Comey’s part, we nevertheless concluded that by departing so clearly and dramatically from FBI and Department norms, the decisions negatively impacted the perception of the FBI and the Department as fair administrators of justice.

While those on the other side see it as a scathing indictment of the FBI in general and Comey in particular. Consider this passage in discussion of Comey’s July remarks

A statement that the sheer volume of information classified as Secret supported an inference of gross negligence was removed and replaced with a statement that the classified information they discovered was “especially concerning because all of these emails were housed on servers not supported by full-time staff”;


As we describe in Chapters Two and Seven of our report, the prosecutors analyzed the legislative history of Section 793(f)(1), relevant case law, and the Department’s prior interpretation of the statute. They concluded that Section 793(f)(1) likely required a state of mind that was “so gross as to almost suggest deliberate intention,” criminally reckless, or “something that falls just short of being willful,” as well as evidence that the individuals who sent emails containing classified information “knowingly” included or transferred such information onto unclassified systems.

or this which I think is the best and most important statement I encountered in the report

Comey’s description of his choice as being between “two doors,” one labeled “speak” and one labeled “conceal,” was a false dichotomy. The two doors were actually labeled “follow policy/practice” and “depart from policy/practice.” Although we acknowledge that Comey faced a difficult situation with unattractive choices, in proceeding as he did, we concluded that Comey made a serious error of judgment.

Said another way there is plenty of room for both reactions. I honestly don’t know what to think.

How does one interpret actions that are inherently political? Where do you draw the line between actions that made certain political assumptions and political bias?

There are some important omissions and, I think, outright errors of law. For example, a commonplace method of inferring motive is that motive may be imputed from a pattern of action. That applies both to Sec. Clinton and to Mr. Comey.

The recommendations in the IG report will probably result in dismissals but IMO are unlikely to result in any criminal prosecutions. While falling short of the bill of criminal particulars that some wanted it also falls short of the complete exoneration that others wanted.

2 comments… add one
  • bob sykes Link

    The IG’s report is irrelevant. We know that the DOJ and FBI are politicized and corrupt, our own Stazi/Cheka, and we know that a large majority, if not all, of the senior and mid-level officials in both agencies need to be in prison, preferably in Gitmo.

    Why anyone doubts the corruption is beyond me. Has no one ever heard of J. Edgar Hoover, or Ruby Ridge or Waco. The FBI, in particular, has a long history of blackmail and extortion and outright murder. It goes all the way back to its founding in 1908. Hoover was appointed to clean up a corrupt agency; he merely organized the corruption and made it more efficient.

    For many years I believed the official stories about the murders of JFK, RKF and MLK. Nowadays I am convinced those, and many others, were Deep State/Cabal ops.

  • steve Link

    I also thought your last quote was especially good. I do feel sorry for the guy. He was in a bad situation. Investigating both candidates and trying not to let it get out of hand, and trying to avoid the appearance of bias. So he took what he thought was a reasonable compromise, when he would have been best off following policy.

    I also thought the part on McCabe was good. If I have it down correctly, it sounds like McCabe did the right thing and revealed his wife’s activities and receiving money, but it sounds like the Bureau doesn’t have firmly set policies in this area. It also pointed out McCabe could have voluntarily recused himself, which I think he should have. The report goes on to say there was no evidence of bias in his actions, but some people will never believe that.

    More broadly, this will keep being an issue. Now that we have these “power” couples we seem to have decided to just overlook the possibility of influence, except when it is convenient. You can be judge who is married to a political activist, and that is OK. Be a judge married to a politician and that is OK. FBI agent? Why is that so different?


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