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”;

this

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.