Bill Black: FBI Investigations Are Conducted at the Discretion of its Director

Jerri-Lynn here: Many of the expected usual suspects are weighing in on prospects for Trump surviving the investigations now swirling around his administration (something I expect to discuss at greater length in a future post).

This Real News Network interview with Bill Black discusses the history and dynamics of FBI investigations, which are neither as unstoppable nor as unimpeachable as is sometimes claimed. As probes continue, it’s important to understand relevant history and precedents.

KIM BROWN: Welcome to The Real News Network in Baltimore. I’m Kim Brown.

The password is “investigations”. You need a score card to keep track of all the investigations happening in D.C. right now, each in some way connected to the 2016 presidential election. There are at least three congressional probes and perhaps two or more investigations by the FBI and by the Department of Justice, yet out of all of the smoke, what will be the outcome? Don’t forget, we were seven congressional probes into the 2012 Benghazi attacks and not much came out of that in terms of persons held legally accountable. So what should be the expectations of all these investigations? To get more clarity on this, we’re joined with Bill Black.

Bill is an assistant or rather an associate professor of economics in law at the University of Missouri at Kansas City. He’s also a white collar criminologist and a former financial regulator, author of the book titled, The Best Way To Rob A Bank Is To Own One, and he is a regular contributor here at The Real News. He joins us today from Minnesota. Bill Black, as always, welcome.

BILL BLACK: Thank you.

KIM BROWN: Bill Black, that has been the buzzword pretty much for the past couple of weeks, but this week in particular regarding the investigations. We’re talking about an investigation into former FBI Director Jim Comey’s email investigation into Hilary Clinton and now an investigation into former Director Comey’s firing, an investigation happening surrounding Mike Flynn and his potential role there. So what are we to take away from these numerous investigations not only swirling around D.C. but swirling around this White House in particular?

BILL BLACK: I wanted to provide some background and some perspective. As you said, I’m a former financial regulator that worked very closely with the FBI and Department of Justice investigations and prosecutions of elite white collar criminals and also, on a pro bono basis, was an outside consultant, an expert to the investigation of a portion of the Bill Clinton stuff. That was a special counsel relationship as well. I can tell you a little bit about these things that are now famous, these Comey notes about the meeting that he had with the president in which, at least according to the leaks, the notes show that the president asked Comey to not pursue General Flynn.

So to begin at the beginning, also with this claim that you’re hearing repeated time after time, that nothing can interfere with an FBI investigation and such. In fact, enumerable things can and do interfere with FBI investigations and anybody that’s lived through the financial crisis that we just had knows that because they know that the same person, Robert Mueller, the former head of the FBI, not an evil person at all, understandably reorganized the FBI in response to the 9/11 attacks to make it almost exclusively, in its priorities, a counter-terrorist and intelligence organization. That meant that the absolute best people that investigate white collar crime, and the way they do that is by following the money, in other words, the ones with real financial expertise, were transferred out of the white collar section and they were never replaced. That’s one of the stories of why there have been zero successful prosecutions because they easily defeated investigations of all the top bankers by never assigning remotely enough agents to the work and assigning them to minor cases.

Historically, J. Edgar Hoover of course was the first director of the FBI and served almost forever and notoriously would not allow the FBI to investigate attacks on, for example, blacks and civil rights workers. The movie, Mississippi Burning, is a fictionalized account of when the attorney general of the United States finally pushed back and forced the FBI to investigate. There were hundreds of occasions in which Hoover intervened to start investigations or stop investigations. Of course, John Dean came up with a bright idea of stopping an FBI investigation by having the CIA, who was only too happy to agree to help President Nixon, falsely claim that the FBI shouldn’t look because it was really a CIA operation.

Let’s do away with this myth that there’s nothing that can interfere with an FBI investigation. The FBI investigations were very much at risk. Let’s talk a bit about the key players. Rod Rosenstein is the Deputy Attorney General and because Sessions is recused from dealing with matters involving Russia, Rosenstein actually serves as the acting attorney general when he appointed Mueller, former head of the FBI, before Comey as the special counsel to look at these matters. A little bit about the notes. FBI agents are, in fact, taught, like most people with senior positions in Washington D.C. that involve important matters, to, immediately after a key meeting, to take detailed notes in writing while you’re doing the meeting and then turn those notes into a description of the meeting.

The way the FBI does it when they do full stuff, which is normal and is to create a Form 302, which is their form that purportedly says what happens, what they were told in interviewing a potential witness. I’ve been a potential witness against the five senators who became known as the Keating Five. So I’ve actually seen the FBI Form 302 that was done up after my conversation. Here are some hints and you can see a difference from the Comey memo. First, the FBI always has two agents in the room when they do this. Second, only one of those agents actually writes up the 302. Yes, they get input from the others. Yes, maybe they get corrections, but they make sure that they have two witnesses against one witness, they make sure they’re the ones that have the official form, they make sure that that form was created in the ordinary course of business as part of their duties, and of course they have vastly more prestige, and of course there’s no such thing as a regular FBI agent. They are all special agents and such.

So they do everything possible to try to give them much more credibility than anyone else and to lock a witness into the statements. As people may recall, it is a crime to lie to the FBI in the course of one of these interviews where there’s an underlying criminal investigation. I can tell you from looking at the Form 302 that there were a number of errors in it, as you would expect. They weren’t deliberate errors. They were interviewing me about a complex matter about how five U.S. senators tried to intervene on behalf of one of the worst crooks in the savings and loan industry, how that all happened, how various rules and enforcement actions were occurring, is very complicated. Unless you really know the industry, when you try to write it up, you’re gonna get it wrong.

Here’s what the FBI doesn’t do. They don’t then check with a witness and say, “Here’s our write up. Did we unintentionally glitch because we didn’t quite understand some terms of art?” So that’s how it’s supposed to work. Of course Comey was not interviewing the President of the United States. This is not a Form 302. There were not two of him, two FBI agents in the room. There was just him and for some of these, it’s not clear that he created the memo very immediately after the meeting, and it appears that in almost all cases of at least the physical meetings with the president, that he had no contemporaneous notes of the meeting. By the way, those contemporaneous notes tend to disappear and just the Form 302 is left so that you can’t check whether the Form 302 really corresponds with the notes, all of which is to say this is a system designed to give the FBI vastly more credibility.

Comey can’t take full advantage of that because he hasn’t followed and couldn’t have followed a number of the key procedures, but of course, has the great advantage that the person on the other side is Donald Trump and even Donald Trump supporters don’t believe he tells the truth. So Rod Rosenstein had a good reputation as a professional prosecutor that would actually go after elite white collar criminals and I had people, formally, who had worked with him call me when it got into the news that he was likely to be appointed and say, “Look, I know this guy. This is really good news. You might actually get some prosecutions of the elite bankers.” But Rosenstein has the bug and the bug, of course, is wanting to be in this really senior position. So even though he knew that the president had already decided to fire Comey, Rosenstein was willing to create this pre-textual document. That’s not saying that what’s said in the document is false, it’s just that it’s not the real reason that Comey was fired.

What happened then is Rosenstein got immense criticism by everybody in the former Justice Department community and it was that attempt to refurbish his reputation and probably the fact that he’s pissed off at the White House for the misleading statements it made originally about how the Rosenstein memo supposedly was the basis for Trump firing Comey. That combination apparently led him to appoint this special counsel.
KIM BROWN: [inaudible 00:12:28] Robert Mueller’s investigation as special counsel, but unfortunately we’ve run out of time, Bill. So we’re gonna have to leave it there. We’ve been speaking with Bill Black, Associate Professor of Law and Economics at the University of Missouri at Kansas City. As always, Bill, we appreciate you joining us today.

BILL BLACK: Thank you.

KIM BROWN: Thank you for watching and supporting The Real News Network.