Inspector General Michael Horowitz has submitted the “Draft Report” of his OIG investigation to the principals involved. The IG investigation encompasses the FBI and DOJ conduct during the 2015/2016 Hillary Clinton investigation. The Draft Report encompasses the findings.
The Draft Report review is the last review phase prior to the Final report being released. The Draft Report review allows the principals to provide input on the facts identified and outlined within the draft.
Responses from the principals about the facts outlined in the draft report are then reviewed, cleared for addition if appropriate, and included in the Final Report. The Draft Report is the first time the DOJ and FBI Principals (only those officials who remain inside the DOJ and FBI) get to see the underlying documentary evidenced gathered in the 17-month-long investigation.
Wall Street Journal – Multiple subjects of a report on the Justice Department’s handling of a 2016 investigation into Hillary Clinton’s email use have been notified that they can privately review the report by week’s end, signaling t he long-awaited document is nearing release.
The report is likely to reignite the volatile debate over the Federal Bureau of Investigation’s handling of the Clinton probe, and it will put Michael Horowitz, the Justice Department’s inspector general, in a familiar place—taking aim at members of the law enforcement community.
Those invited to review the report were told they would have to sign nondisclosure agreements in order to read it, people familiar with the matter said. They are expected to have a few days to craft a response to any criticism in the report, which will then be incorporated in the final version to be released in coming weeks. (more)
♦Expanding on The Process. The Final IG Report is a statement of fact. The Draft Review contains all of the statements of facts and allows investigated parties an opportunity to provide input toward any fact statement within the draft.
Prior to the Draft Review there is a massively exhaustive reference check undertaken by the IG “referencer”.
The referencer could be a person or a group of people depending on the size of the report.
The referencer has the responsibility for going through every statement of fact and providing the citation or footnote for the assertion. The person(s) doing the reference review has/have the most arduous of tasks.
The referencer checks every sentence, every assertion, and ensures only provable facts with citations are part of the report. Every assertion of fact must be cited (or footnoted) to include the investigative material that proves the fact.
Remember, the final IG report is an assembled outline of facts. The final IG report will not include opinion, motive, or intent from the report author. All outlined opinions, motives and intentions within the IG report are those drawn from the statements of the people and groups investigated. All opinions expressed are those of the individuals inside the report.
The person(s) doing the reference checks, goes through the report line-by-line and references the supporting investigative documentation. A massively time consuming part of the report generation.
When the referencing process is completed, the draft report is sent out to the principals for comment on the draft report findings and recommendations. This is where the process is RIGHT NOW. If the principals return comments on the “draft”, their comments must be cleared by the person(s) doing the reference check, and may be included in the final draft.
Then the report goes to print.
More Key Points:
♦First, the draft report is reviewed internally. Only the principal officers who are currently inside the investigated agency get to see it. Those officials must sign comprehensive Non Disclosure Agreements, subject to criminal prosecution if they violate the NDA.
Former Officials, or employees who have left the agency: ex. James Comey, Andrew McCabe, Lisa Page, James Baker, Jim Rybicki, Michael Kortan and all of the officials who have left the FBI will not get to see the draft report. [Now you know why Lisa Page and James Baker were dispatched last week.]
The same IG rules of Draft Report distribution apply on the Main Justice side of the DOJ and (DOJ-NSD) (DOJ-National Security Division). Loretta Lynch, Sally Yates, Mary McCord, John Carlin, David Laufman, etc. do not get to see the report. Attorney General Jeff Sessions and Asst. AG Rod Rosenstein will review the draft report and control who they allow to review.
On the FBI side, Director Christopher Wray will review the draft report along with Asst FBI Director David Bowditch (if approved). Likely FBI Chief Legal Counsel Dana Boente, the former head of the DOJ-NSD, will also review. [*note* now we know why Boente was brought back inside in January ’18] Two more principals who could review would be FBI Asst. Director in charge of Counterintelligence Bill Priestap; and we must remember – FBI Agent Peter Strzok was not kicked out, he also remains inside.
Attorney Ristvan has also done a review of OIG process history to help understand the timing for the final report based on Current Draft Review status. The basic process is set out in an OIG ‘blue book’ in 1993, itself required by section 515 of P. L. 106-554, the Inspector General Act.
Comment on draft review is the final step before official publication, but there isn’t much wiggle room so it is not a long process. All interviews are attended by two OIG personnel. All important interviews are taped and/or transcribed then attested to by the interviewee in a sworn affidavit. The average time for an OIG DoJ draft to receive comment and then go to final publication is about two weeks. It has been this way since about 2005.
The most recent related IG report, on Andrew McCabe misconduct, was about 10 days from draft review to final publication. This puts the time-frame for final report publication before the end of May.
♦ Secondly, the IG report does not include criminal referrals. The final IG report is a statement of facts. The IG report only provides the facts to decision-making leadership, who then decide what to do with those facts. However, if the IG discovers evidence of unlawful or illegal activity during the course of his/her investigation, the IG has a legal and ethical responsibility to tell the head of the DOJ immediately.
The IG cannot keep evidence of unlawful conduct hidden until the release of the report.
The federal attorney (Huber) then constructs a parallel investigation based on the evidence the IG has discovered.
However, as with all criminal investigations, Prosecutor John Huber would then fire-wall the IG from his own expanded criminal investigative inquiry.
It is critical to understand what happens when a U.S. Attorney joins with the OIG. The evidence flow only goes one-way. The IG is not participating in a criminal investigation. The IG is only looking at facts within his investigation and shares any pertinent investigative findings with the U.S. Attorney. The U.S. attorney does not provide the IG with findings from his criminal investigation.
IG Horowitz and U.S Attorney Huber might interview the same subjects. [In rare instances they might even interview the same subject simultaneously] However, Huber would not share his criminal investigative interview content/evidence with Horowitz. Therefore the content of a final IG report may contain outlines/evidence of criminal behavior, but there could be -likely is- much more evidence in addition to the IG report.
How the criminal prosecutions might proceed after the final IG report is released involves prosecutor strategy.
U.S. Attorney John Huber may wish to wait and see how the participants react to the facts outlined in the report; or he may use the IG report to expand his criminal investigation and conduct additional interviews of people who are outside government, and as a consequence outside of the IG investigative reach.
Huber may -likely does- already have this process, and a seated grand jury, well underway.
As a result this additional line of investigation was announced in March: