Editor’s Note: Paul Callan is a CNN legal analyst, a former New York homicide prosecutor and current counsel at the New York law firm of Edelman & Edelman PC, focusing on wrongful conviction and civil rights cases. Follow him on Twitter @paulcallan. The opinions expressed in this commentary are those of the author. View more opinion articles on CNN.
Many of the media’s seasoned political analysts professed to hear nothing new in FBI agent Peter Strzok’s congressional testimony Thursday. It is true that the embarrassing and completely inappropriate text messages he exchanged with his FBI paramour, attorney Lisa Page, have already been publicly dissected.
But the hearing was the American public’s first flesh and blood view of Strzok, this key figure in the FBI’s Hillary Clinton email and Russia investigations – and it wasn’t pretty. The partisan bickering and speeches disguised as questions brought little honor to either the House Oversight or Judiciary committees in Thursday’s three-ring circus masquerading as a hearing.
The FBI portrait, painted in agonizing detail by headline-hunting congressional interrogators, was an ugly view of an institution that once enjoyed a reputation for political independence, honesty and integrity. Strzok, an expert in the field of counterintelligence, had played a leading role in the Hillary Clinton investigation. And particularly damaging was the fact that, according to unnamed US officials, Strzok played a role in changing former FBI Director James Comey’s wording regarding how she handled classified information from “gross negligence” to the noncriminal “extremely careless.”
Strzok’s testimony suggests the selection of the words “gross negligence” reflected his honest factual assessment of Clinton’s conduct in the handling of classified email. Use of the words was flagged by unnamed FBI lawyers because “gross negligence” has a specific legal implication and might convey the wrong message about Clinton’s actions.
The words “gross negligence” are used in a federal criminal statute related to misuse of classified information. Strzok then changed the wording to the legally tepid “extremely careless,” thereby enabling his boss, Comey, to sound credible when saying that “no reasonable prosecutor” would bring a criminal case against Clinton based on these facts.
In defense of his decision to conclude the Clinton investigation, Comey stated that the probe “was done competently, honestly, and independently.” He added, “I know there were many opinions expressed by people who were not part of the investigation – including people in government – but none of that mattered to us. Opinions are irrelevant, and they were all uninformed by insight into our investigation, because we did the investigation the right way.”
But, of course, we now know the opinion of one agent, and he happens to be the one who substituted “extremely careless” for “gross negligence,” a usage that might have suggested to some that Clinton had violated US laws in her handling of classified email materials. That agent, Strzok, despised Trump.
He admitted in congressional testimony and in documents revealed by the Department of Justice that he sent a variety of text messages to Page in which he referred to the current President of the United States as “a f*cking idiot,” while Page called Trump a “loathsome human.” To which Strzok replied: “Yet he may win.”
In one exchange Page sent a text to Strzok saying, “(Trump’s) not ever going to become president, right? Right?!” Strzok replied, “No. No he’s not. We’ll stop it.”
In Strzok’s testimony, he said those exchanges represented his personal opinions and that those opinions have never affected any official action he took. It was also noted repeatedly Thursday that the Justice Department inspector general’s investigation concluded that Strzok’s obvious expressions of bias using FBI phones did not influence any aspect of the Clinton and Russia investigations.
If Strzok were subpoenaed to testify before a jury in an ordinary criminal case, his actions would doom the case. Attorneys who try cases for a living as I do would view Strzok’s texts and testimony as a gold mine and a mother lode of cross-examination material.
Regardless of the IG’s findings, which are only his personal opinion, objective jurors would be stunned by such an obviously biased investigator being employed by the FBI in such a lofty investigative position. Strzok would insert reasonable doubt into any criminal case where he appeared as a prosecution witness.
Some may assume that if Strzok really wanted to sabotage the election of Trump all he had to do was leak the fact that the FBI was investigating Trump. But that logic doesn’t fly. Strzok would have feared loss of his job or possible criminal prosecution for such a leak – particularly if classified information were involved. The true test of Strzok’s biases and intentions can be found in his malicious text messages.
The biggest tragedy of all is that the conduct of Strzok, Page and ultimately Comey may well have been far more damaging than any covert actions against the United States by the Russians. They have destroyed the institutional credibility of a sacred American institution, the FBI.