Page:A Review of Various Actions by the FBI and DOJ in Advance of the 2016 Election.pdf/172

 exploit substantial amounts of data in support of the investigation.... The efforts of the case Agents and case team should be commended.

Nonetheless, the File Review Report also contained criticisms of the Midyear investigation. Generally, the File Review Report assessed that it would have been better to run the Midyear investigation as a traditional criminal investigation out of a Criminal Investigative Division (CID) field office, rather than as a counterintelligence investigation out of CD. The File Review SSAs expressed concern that treating the investigation as a CD investigation with NSD oversight resulted in more limited use of compulsory process such as grand jury subpoenas and search warrants. However, the File Review SSAs told the OIG that they were not aware of any precedent for handling a counterintelligence investigation out of CID. File Review SSA 2 stated that counterintelligence investigations “are always run out of the Counterintelligence Division.”

The File Review SSAs identified specific concerns with the Midyear investigation, although we found that many of these concerns were the result of the fact that the File Review SSAs had incomplete information. For example, the File Review Report states, “No immunity in exchange for testimony was observed in the investigation,” and “[o]ne instance of a proffer letter was observed,” referring to the limited use immunity agreement between the Department and John Bentel.

The File Review SSAs told us that they were unaware that the Midyear prosecutors also entered into letter use immunity agreements with Combetta and Pagliano. The File Review SSAs told us, consistent with the File Review Report, that they believed the Midyear agents relied too heavily on outlines during interviews and did not ask sufficient follow-up questions. However, they stated that they based this assessment only on their review of the FD-302s. The Midyear SSA and Agent 1 told us that the CD Division does not draft FD-302s in such a way that a reader would know what follow-up questions were asked of witnesses; instead, the FD-302s generally set forth each witness’s ultimate statements in response to series of questions.

In addition, the File Review SSAs told us that they considered the DIOG, but did not consider any Department policies, such as the USAM, regarding guidelines for obtaining evidence relevant to the Midyear investigation. For example, they