The Loretta Lynch “Matter” Matter Matters, But it Shouldn’t

President Donald Trump took to Twitter Tuesday morning to condemn former Attorney General Loretta Lynch for requesting special treatment for Hillary Clinton during the 2016 presidential election.

The move follows former FBI Director James Comey’s Senate testimony last Thursday, when he made the disturbing allegation that Lynch, a Democratic political appointee, asked him to refer to the FBI probe into Clinton’s handling of classified information as a “matter” rather than an “investigation,” presumably in order to minimize the damage to her public image. Comey used the term “matter” when discussing the Clinton investigation in 2015 and, according to him, he was doing so at the direction of Lynch. But, as he predicted, the press ignored the term and referred to it as an “investigation” in its coverage. 

If true, this is unsettling on many levels. While this alleged attempt to manipulate the media narrative around the Clinton investigation is certainly not the most urgent and important story to come out of the Comey hearing, we should all be concerned about it. This evidence that the attorney general sought to break protocol to benefit a presidential candidate from her own political party compromises the impartiality of the Justice Department and undermines the integrity of our election process.  

But even more disturbing than this special treatment is what this incident says about our society’s perception of the significance of an FBI investigation. The fact that Lynch sought to characterize the “investigation” as a “matter,” in an effort to downplay it, shows that one of the most seasoned and respected law enforcement officials understands that the public typically views the mere fact of an FBI investigation as strong evidence of guilt. Of course, in reality, the fact that someone is being investigated by the FBI tells us nothing about whether they are guilty of a crime.

The requirements the FBI must meet in order to open an investigation are far too low. In fact, they are practically nonexistent.  

FBI investigations fall into three categories: assessments, preliminary investigations, and full investigations. As the Brennan Center’s Michael German and Emily Hockett have explained, assessments can be conducted “without any objective basis to suspect the target of the investigation has violated any law, or is likely to in the future.” As long as an agent claims they have an “authorized purpose,” like preventing crime or espionage, they can open an assessment — which allows for the use of informants, physical surveillance, interviews, and more.  

The FBI’s own statistics provide some of the best evidence that an investigation is not suggestive of wrongdoing.  In their piece on Just Security, German and Hockett pointed out that from 2009 to 2011, only 4 percent of over 82,325 FBI assessments led to information that ultimately warranted the opening of  more extensive investigations. This is doubly unsettling given how low the standards are for preliminary investigations. German and Hockett note:

Preliminary investigations require only “information or an allegation,” and … the allegation does not need to be “credible.” A 2010 Inspector General report found the FBI opened preliminary investigations on political advocacy organizations based on mere speculation that the subjects might commit a crime in the future, and the agents themselves often made the required “allegations.”

Only a full investigation requires an articulable actual basis” of criminal activity, but even that tells us very little about whether the subject of an investigation is actually guilty.

Overall, this extreme discretion afforded to the FBI is bound to be disproportionately employed against politically unpopular groups. In particular, it exacerbates the potential for investigations to be brought as a result of explicit and/or implicit bias against racial and religious minorities.

But recent events show that these low standards, and the massive gulf between public perception and reality, do not just threaten the most vulnerable among us — they can hurt even the most powerful politicians, Democrats and Republicans alike. Trump’s obsession with proving that he is personally not under investigation shows that he too is affected.

The solution is two-fold. First, Attorney General Jeff Sessions (and if not him, Congress) must raise the requirements for initiating FBI investigations. But even more importantly, we all need to stop equating investigations with culpability, period. Public officials and the media need to explain to the public that, no matter what, the mere fact that someone is under investigation will never be strong evidence that they are guilty of wrongdoing. After all, the fundamental purpose of an investigation is to determine whether that is the case.

With that in mind, I think it’s fair to say that there was some merit in Lynch’s attempt to characterize the  Clinton investigation as a “matter,” since that does not carry the same unjustified connotation of guilt. The problem is that everyone targeted by the FBI deserves that same deference, not just the political allies of those in power.

Image: Aaron P. Bernstein/Getty  

About the Author(s)

Jay Shooster

Former Associate Editor and Masiyiwa-Bernstein Fellow at Just Security Follow him on Twitter (@JayShooster).