A Review of the FBI's Response to John Roberts' Statements on 60 Minutes
Office of the Inspector General
This report describes the Office of the Inspector General's (OIG) investigation of allegations that officials in the Federal Bureau of Investigation (FBI) retaliated against John Roberts, a Unit Chief in the FBI's Office of Professional Responsibility (OPR), for comments he made on the television program 60 Minutes. On the October 27, 2002, 60 Minutes broadcast, Roberts made statements critical of the FBI's investigation and adjudication of employee misconduct, suggesting that there was a continuing double standard of discipline in the FBI. After the broadcast, allegations arose that senior FBI officials, including Robert Jordan, the newly appointed Assistant Director (AD) in charge of FBI OPR, engaged in a course of retaliatory conduct against Roberts. Allegedly, Jordan angrily confronted Roberts and chastised him for his statements on 60 Minutes, referred Roberts to the OIG for investigation because of his appearance on 60 Minutes, criticized Roberts during an FBI OPR all-employees meeting at which Roberts was not present, and selected another FBI OPR Unit Chief who had less experience than Roberts to be the FBI OPR Acting Deputy Assistant Director (DAD). Jordan and other FBI officials denied that they engaged in any retaliatory actions against Roberts for his statements on 60 Minutes.
On November 8, 2002, Senators Patrick Leahy and Charles Grassley wrote to FBI Director Robert Mueller expressing their concern about the alleged retaliation against Roberts and seeking the FBI's response to a series of questions about the matter. (See Attachment 1.) In response, the FBI referred the allegations to the OIG and requested an investigation of them. We agreed to investigate the matter.
During the course of our investigation, the OIG interviewed more than 20 FBI employees, including Roberts, his wife Brenda Roberts (who works as Jordan's secretary in FBI OPR), Jordan, FBI Director Mueller, FBI Deputy Director Bruce Gebhardt, and FBI Executive Assistant Director (EAD) for Administration W. Wilson Lowery. The OIG also interviewed many of the FBI OPR Unit Chiefs, special agents, and administrative employees who were present at the FBI OPR all-employees meeting. In addition, we obtained FBI documents relating to the allegations of retaliation and the 60 Minutes broadcast, including e-mails and notes taken during the all-employees meeting.
This report describes the results of our investigation. The report first provides a timeline of relevant events. It then discusses the background to the allegations, including the structure of FBI OPR, what was aired on the 60 Minutes program, and the reaction by FBI employees. The report then describes in detail several meetings among FBI managers and two meetings between Roberts and Jordan after the broadcast. It also describes what was said at the FBI OPR all-employees meeting on November 6. The report next examines the decision by Jordan to appoint an Acting DAD of OPR. The final section of the report provides our analysis and conclusions regarding the allegations.
TIMELINE OF KEY EVENTS
|July 18, 2001||Roberts testifies before Congress about a double standard of discipline in the FBI|
|September 2, 2002||Jordan becomes Assistant Director in charge of OPR|
|September 25||Roberts' attorney requests permission for Roberts to be interviewed by 60 Minutes|
|October 8||FBI gives Roberts permission to be interviewed by 60 Minutes, with certain restrictions Roberts is interviewed by 60 Minutes|
|October 27||60 Minutes broadcast|
|October 28||Jordan meets with FBI Director Mueller about 60 Minutes broadcast|
|October 29||Jordan and Lowery meet to discuss letter referring Roberts' allegations to the Inspector GeneralLowery, Gebhardt, and Mueller meet to discuss referral letterJordan and Lowery meet with Roberts in Lowery's office|
|October 30||Jordan gives Roberts a copy of the referral letter to the Inspector General|
|November 1||FBI sends letter to 60 Minutes responding to the broadcast; FBI posts letter on FBI Intranet|
|November 5||Jordan changes OPR all-employees meeting from November 7 to November 6|
|November 6||Roberts is out of the office on sick leaveIn the morning, OPR Unit Chiefs' meeting is heldIn the afternoon, OPR all-employees meeting is heldFBI posts position for OPR Deputy Assistant Director|
|November 8||Senators Leahy and Grassley write to FBI Director Mueller expressing concern about treatment of Roberts|
|November 12||Jordan appoints OPR Unit Chief Brian Fortin to serve as OPR Acting Deputy Assistant Director|
FBI OPR investigates and adjudicates allegations of misconduct against FBI employees. OPR is composed of six units: two Internal Investigative Units, two Adjudication Units, one Administrative Unit, and one Law Enforcement Ethics Unit (LEEU). The two Internal Investigative Units review allegations of misconduct, investigate and determine the relevant facts, and send the results of the investigations to the two Adjudication Units, which evaluate the evidence and recommend appropriate discipline. The recommended discipline has to be approved by the FBI OPR Assistant Director. The two Internal Investigative Units have approximately 20 employees in total, and the two Adjudication Units have approximately 20 employees in total.
The FBI OPR Administrative Unit provides administrative support to FBI OPR and consists of approximately 14 employees. The FBI OPR LEEU, located at the FBI's training academy in Quantico, Virginia, was established in 1995. Its mission is to teach ethics to FBI personnel and monitor the overall integrity of the FBI's components. At the time of the 60 Minutes broadcast, the LEEU had four employees.
A Unit Chief heads each OPR unit. All Unit Chiefs report to Jordan, the Assistant Director in charge of OPR. Prior to March 2002, OPR also had a Deputy Assistant Director. That position has been vacant since March 2002 when the former Deputy Assistant Director, John O'Connor, retired.
Before July 2001, the FBI had sole jurisdiction to investigate allegations of misconduct by FBI employees; the OIG could not investigate misconduct in the FBI without the express permission of the Attorney General or the Deputy Attorney General. In July 2001, the Attorney General expanded the jurisdiction of the OIG to allow it to investigate misconduct throughout the Department of Justice (Department), including in the FBI.1 As a result, the OIG now reviews all allegations of misconduct in the FBI and determines which ones it will investigate and which ones FBI OPR should investigate. Normally, the OIG investigates allegations of misconduct against high-level FBI officials, allegations that would likely result in criminal prosecution if proved, and allegations that present the FBI with a conflict of interest or that the OIG believes should be investigated by an entity outside the FBI. Currently, the OIG is conducting approximately 40 investigations of misconduct against FBI employees. The majority of investigations of misconduct against FBI employees, however, are still investigated by FBI OPR. Each year, OPR receives approximately 3000 allegations of misconduct against FBI employees and opens approximately 700 cases.
Although the FBI organization chart indicates that OPR reports to the EAD for Administration, Jordan told the OIG that he reports to FBI Deputy Director Gebhardt on substantive matters and to EAD Lowery on administrative matters.2
Roberts has worked for the FBI since 1984. He initially served as a special agent in the FBI's Paducah, Kentucky, Resident Office and then in the FBI's Miami Division. In 1990, he was assigned to FBI OPR as a supervisory special agent to investigate misconduct cases. In 1993, he was assigned to the FBI's Inspection Division as an Assistant Inspector. In 1994, he transferred to the Boston Division of the FBI. In 1995, he was assigned to work on the internal investigation of the FBI's actions in the Ruby Ridge case. Roberts was one of two FBI Inspectors in Charge of that investigation, working with the Department Task Force and then with the Acting United States Attorney for the District of Columbia, who led the Department's investigation of the handling of the Ruby Ridge matter.3 In 1997, Roberts was transferred to FBI OPR and made the Unit Chief of Internal Investigative Unit II, his current position.
During his time in OPR, and during his work on the Ruby Ridge matter, Roberts investigated various allegations of misconduct against high-level FBI officials. As a result of his work, Roberts has raised allegations to the FBI, the Department, and Congress that a double standard of discipline exists in the FBI. For example, on July 18, 2001, he testified before the Senate Judiciary Committee about investigations of misconduct within the FBI, including the Ruby Ridge case, and the perception of a double standard of discipline in the FBI.
Roberts is married to Brenda Roberts, who has served as the secretary to the FBI OPR Assistant Director since January 2001. She is currently Jordan's secretary.
Jordan has been employed by the FBI since 1980. Prior to joining the FBI, he was an Assistant District Attorney in Philadelphia. During his career at the FBI, he was assigned to the FBI's Boston Field Division to work on public corruption cases; the Public Corruption Unit at FBI Headquarters; the FBI's San Diego Field Division, where he worked on a large-scale judicial corruption case; and the Newark Field Division, where he served as an Assistant Special Agent in Charge (ASAC) of that office. In 2000, he was transferred to FBI Headquarters to become the chief of the FBI's Integrity in Government/Civil Rights Unit, where he had oversight of public corruption, government fraud, and civil rights investigations.
On August 19, 2002, Jordan was appointed to be the Assistant Director in charge of FBI OPR. Jordan assumed that office on September 2, 2002.4
According to many accounts, prior to the 60 Minutes broadcast on October 27, Jordan and Roberts had a positive and professional relationship. For example, Roberts told others in OPR after Jordan arrived that Jordan was an asset to OPR and credited him with good work. Roberts also told the OIG that he made many complimentary statements about Jordan during his 60 Minutes interview, none of which was broadcast. Several OPR employees also informed the OIG that Roberts had commented to them that Jordan seemed to represent a positive change for OPR. For example, one OPR employee said that after meeting Jordan, Roberts had said that Jordan was a nice change of pace, open to opinions, and willing to listen.5
When Jordan was away from the office on two occasions before the 60 Minutes broadcast, he appointed Roberts, who was the most senior Unit Chief in OPR, as the Acting Assistant Director in his place. These two times occurred when Jordan attended a conference for two days in early October and when he went on annual leave from October 14 to October 23. During his absences, Jordan authorized Roberts to attend all meetings and exercise all authority on Jordan's behalf.
III. THE 60 MINUTES BROADCAST
According to Roberts, in late September 2002, 60 Minutes contacted his attorney and requested an interview of Roberts by correspondent Ed Bradley. Roberts' attorney sought permission from the FBI for Roberts to be interviewed. In a letter dated October 8, 2002, Michael Kortan, the Chief of the Public Affairs Section in the FBI's Office of Public and Congressional Affairs, gave Roberts permission to be interviewed. Kortan's letter stated that he understood Roberts would be asked to address general issues regarding the FBI's culture but would not be asked to comment on confidential FBI matters or open investigations. The letter reminded Roberts that he was restricted from discussing any official FBI information in 12 broad categories. (A copy of Kortan's letter is Attachment 2.) Jordan also was given a copy of the letter.
Roberts said that he believed that 60 Minutes would interview him about the subject of his testimony to Congress in July 2001, which concerned investigations of misconduct in the FBI and the alleged double standard of discipline. Roberts told us that he did not receive any instructions from the FBI, other than Kortan's letter, about the 60 Minutes interview. Neither Jordan nor Lowery talked to Roberts about the interview in advance. Roberts said that one official from the FBI's Office of Public and Congressional Affairs spoke to him before the interview and was critical of 60 Minutes, and how it had portrayed the FBI in the past, but the official did not instruct Roberts not to do the interview or tell him what to say during the interview.
On October 8, Roberts was interviewed for about 50 minutes by 60 Minutes correspondent Ed Bradley. Roberts' attorney was present during the interview to ensure that Roberts followed the restrictions in the FBI letter. Roberts told the OIG that during the interview he made numerous complimentary statements about Jordan. He also said that although he knew that Sibel Edmonds, a former FBI contract employee who had made various allegations about misconduct in the FBI's translation program, was going to be interviewed by 60 Minutes, Roberts thought that 60 Minutes was going to broadcast separate segments about Edmonds and him.
The 60 Minutes broadcast containing excerpts of Roberts' interview aired on Sunday, October 27. The program mainly concerned allegations by Edmonds that the FBI had not translated thousands of foreign language documents and that the FBI's foreign language program was riddled with incompetence and corruption.6 (A transcript of the 60 Minutes broadcast is Attachment 3.)
The 60 Minutes segment also included an interview of Senator Grassley, who stated that he believed Edmonds was credible because people within the FBI had corroborated much of her story. Ed Bradley stated on the program that critical shortages of Middle Eastern translators had plagued the FBI for years and that the FBI had hired more foreign language translators after the terrorist attacks on September 11, 2001, but the FBI admitted that it had difficulty performing background checks on the translators. Edmonds said that an FBI contract translator had tried to recruit her into an organization that was the subject of an FBI investigation. Edmonds said she complained repeatedly about this other translator, but no one in the FBI wanted to hear it. Senator Grassley stated that the Edmonds case fell into a pattern of behavior by the FBI to sweep embarrassing information under the rug, then "eventually they shoot the messenger."
The 60 Minutes segment then aired the following excerpts from its interview of Roberts:
BRADLEY: Special Agent John Roberts, a chief of the FBI's Internal Affairs Department, agrees. And while he is not permitted to discuss the Sibel Edmonds case, for the last 10 years, he has been investigating misconduct by FBI employees and says he is outraged by how little is ever done about it.
ROBERTS: I don't know of another person in the FBI who has done the internal investigations that I have and has seen what I have and that knows what has occurred and what has been glossed over and what has, frankly, just disappeared, just vaporized and no one disciplined for it.
BRADLEY: Despite a pledge from FBI Director Robert Mueller to overhaul the culture of the FBI in light of 9/11, and encourage Bureau employees to come forward to report wrongdoing, Roberts says that in the rare instances when employees are disciplined, it's usually low-level employees like Sibel Edmonds who get punished and not their bosses. (Clip of FBI Director Robert Mueller)
ROBERTS: I think the double standard of discipline will continue no matter who comes in, no matter who tries to change. You - - you have a certain - - certain group that - - that will continue to protect itself. That's just how it is.
BRADLEY: No matter what happens?
ROBERTS: I would say no matter what happens.
BRADLEY: Have you found cases since 9/11 where people were involved in misconduct and were not, let alone reprimanded, but were even promoted?
ROBERTS: Oh, yes, absolutely.
BRADLEY: That's astonishing.
BRADLEY: Because you - - would think that after 9/11, that's a big slap on the face. 'Hello! This is a wake up call here.'
ROBERTS: Depends on who you are. If you're in the Senior Executive level, it may not hurt you. You will be promoted.
BRADLEY: In fact, the supervisor who Sibel Edmonds says told her to slow down her translations was recently promoted. Edmonds has filed a whistle-blower suit to get her job back, but last week, US Attorney General Ashcroft asked the court to dismiss it on grounds it would compromise national security. And also on the grounds of national security, the FBI declined to discuss the specifics of her charges, but it says it takes all such charges seriously and investigates them.
IV. REACTION TO THE 60 MINUTES BROADCAST
On the morning of October 28, several FBI OPR employees watched a tape of the program in the office. A few told us that they thought Roberts' statements were factual or that they were not surprised by what he had said. Several, however, told us that they were troubled that Roberts' statements appeared to give credibility to Edmonds's claims, and some said they wondered why Roberts was raising old cases related to the alleged double standard. Others said they did not understand what Roberts was referring to when he claimed that cases disappeared or that nothing would change in the FBI, no matter who "comes in."
Throughout the FBI, many employees and managers expressed their opinions about the 60 Minutes broadcast and Roberts' statements. For example, in an e-mail to Jordan, FBI Deputy Director Gebhardt stated, "If we have internal problems then I would rather find solutions and fix them, rather than tell the world on 60 Minutes. In my opinion, Roberts brought discredit to the FBI Badge, and the 27,000 employees of the FBI. I can't remember when I've been this disappointed."7 Jordan's response to Gebhardt's e-mail started with "I could not agree with you more. There was the obvious direct shot at the Director (and myself) with the quote, 'I think the double standard of discipline will continue no matter who comes in, no matter who tries to change.'"
Jordan was clearly upset by what Roberts said on the show. Jordan told the OIG that he first learned the show was going to be aired when Brenda Roberts told him the segment would be shown on Sunday, October 27. Jordan said he watched the show on Sunday night, but that the portion with Roberts went by so quickly that he was not certain what Roberts had said until the next day, when Jordan obtained a transcript of the broadcast. According to Jordan, after reading the transcript, his initial reaction was that Roberts had either "lied or misstated material fact" when he claimed that cases "disappeared" or "just vaporized." Jordan also said that he thought that Roberts was either not telling the truth or was commenting on his own behavior, because as the Unit Chief of an Internal Investigations Unit, Roberts was responsible for reporting all allegations of misconduct to the OIG. As a result, Jordan questioned how cases could have disappeared or vaporized. Jordan said it seemed incredible that Roberts would claim that cases were not being reported or pursued when it was his responsibility to do just that. Jordan also said that he did not know which cases Roberts was referring to and Roberts had never reported such misconduct to him.
Jordan said he also was startled by Roberts' comment that things would remain the same no matter who was in charge at the FBI. Jordan took that as a criticism of him despite the fact that he had been the Assistant Director of OPR for less than two months. Jordan said that when he was appointed to be the Assistant Director, Director Mueller had instructed him to make changes, which Jordan was in the process of doing, and that he had discussed with Roberts many of the changes planned or under way.
According to Jordan, on Monday morning, October 28, he was asked to come to the Director's office, where he met briefly with Director Mueller about the 60 Minutes program.8 Jordan said Director Mueller asked if Jordan had seen the program and if Jordan knew to what Roberts was referring, and Jordan said he had seen the program but did not know what Roberts was referring to. Director Mueller then asked if it was true that cases vanished or disappeared. Jordan replied he had no information or facts to back up Roberts' statements that cases were vaporizing or disappearing, and that Roberts either misspoke or was misquoted. Jordan also mentioned that Roberts himself was responsible for reporting cases to the OIG. He said the Director then asked Jordan to discuss the matter with EAD Lowery and get back to him on what to do.
Lowery was out of town on October 28 and returned to the office on October 29. He met with Jordan on the morning of October 29 to discuss the 60 Minutes broadcast and Roberts' allegations. Lowery said that he and Jordan reviewed the transcript of the show and were troubled by Roberts' implication that things were not done correctly at OPR, no matter who was in charge. Lowery said he asked Jordan if he knew of any basis for Roberts' allegations, and Jordan responded that he did not. Lowery said that Jordan told him they should refer the allegations raised by Roberts to the OIG. Lowery further stated that Jordan suggested they meet with Roberts and advise him of their intention to refer his allegations to the OIG.
Jordan also said that he and Lowery discussed Roberts' responsibility, and the responsibility of any FBI employee, to report any allegations of misconduct to OPR or the OIG, and that if Roberts was aware of misconduct, as he proclaimed on 60 Minutes, he should report it to the OIG. Jordan said they decided to draft a letter to the OIG describing the 60 Minutes interview and referring Roberts' allegations of misconduct to the OIG. In addition, Jordan said he wanted to write a letter of rebuttal to 60 Minutes to correct the statements made by Roberts.
Lowery and Deputy Director Gebhardt met with Director Mueller later that same day. Lowery said the meeting was brief, and that they advised the Director that they intended to send Roberts' allegations to the OIG and that Lowery and Jordan would meet with Roberts to advise him of this action. Lowery said the Director agreed with the proposed referral to the OIG.9
Gebhardt also confirmed that he and Lowery went into the Director's office to inform him of their intention to refer Roberts' allegations to the OIG. Gebhardt said that at no time did they ever discuss referring Roberts' actions to the OIG, only his allegations.
Director Mueller told us he strongly believed that two allegations raised by Roberts in the 60 Minutes broadcast - that a double standard continued to exist and that cases were "disappearing" or "vaporizing" - needed to be investigated by an independent party. Director Mueller said that after he had read the 60 Minutes transcript, it appeared that the allegations raised by Roberts were current, ongoing allegations and not historical, and that these allegations should be referred to the OIG for investigation. He said he understood that Jordan and Lowery were going to meet with Roberts to inform him of this course of action and that a formal referral letter was going to be sent to the OIG requesting an investigation. Director Mueller said that he never was involved in any discussion about referring Roberts to the OIG for investigation. Director Mueller said that it was his belief that referring the matter to the OIG would resolve the issues raised by Roberts. He said that sometime after Lowery and Jordan had spoken with Roberts, Lowery informed the Director, in a very brief meeting, that everything was fine.10
At 5:00 p.m. on October 29, Jordan, Lowery, and Roberts met in Lowery's office.11 Their versions of what was said during this meeting, and the tone of the meeting, differed markedly.
According to Roberts, he was contacted at about 4:00 that afternoon and told to meet with Jordan at 5:00. Roberts said his initial thought was that they would discuss how to make improvements in OPR. Roberts said that when he went to Jordan's office at 5:00, Jordan appeared very cold and stoic, and they walked across the hallway to Lowery's office.
According to Roberts, in Lowery's office Jordan read the portion of the 60 Minutes transcript with Roberts' statements and asked what he had meant by the comments. Roberts said it was clear that Jordan was very angry and was taking the comments personally. Roberts said Jordan specifically asked about Roberts' comments that the double standard problem continued to exist after September 11. Roberts said he had been restricted from talking about specific cases on 60 Minutes. He said he mentioned the Ruby Ridge and the Potts retirement party cases. He said he did not go into detail about those cases during his interview, but raised them to illustrate the double standard. He said Jordan responded that Roberts had not been clear on 60 Minutes and asked about the comments referring to current double standard problems. Roberts said he told Jordan about a case involving an FBI agent who was being disciplined more harshly for making improper comments than an FBI Special Agent in Charge (SAC) who had made comparable offensive comments in a public forum. Roberts believed the harsher discipline for the agent reflected a double standard. Jordan responded that this case was not on his watch, and Roberts replied that the agent had just received the letter of censure at the end of September, after Jordan started as the Assistant Director of OPR. Roberts said that Lowery asked him to repeat what had occurred in the SAC case, and Roberts did.12
According to Roberts, Jordan then stated that he was "referring this to the OIG." Roberts said that when Jordan made this statement he was holding the 60 Minutes transcript in his hand. Roberts interpreted Jordan's statement to mean that Jordan was referring Roberts to the OIG and that Jordan was accusing him of misconduct. Roberts said he replied that he had done nothing wrong, that he had approval to appear on 60 Minutes, and that he had been instructed not to mention specific cases on the program, which he had not done. According to Roberts, Jordan again said that he was referring "this" to the OIG, and Roberts replied, "You have to do what you have to do. I have done nothing wrong." At that point, according to Roberts, Lowery said "we have work to do," which indicated that the meeting was over.
Roberts said no pleasantries were exchanged at the meeting, and that he believed Jordan and Lowery were angry. He said he left the meeting with a clear message that he had done something wrong, and that Jordan and Lowery were going to refer him to the OIG. Roberts told a colleague in OPR that he had been "read the riot act" in the meeting. Roberts also told the colleague that Jordan had a copy of the 60 Minutes transcript and was angry about the statements Roberts had made.
Jordan's and Lowery's accounts of the meeting differed significantly from Roberts' version. Jordan said that at the meeting he reviewed with Roberts the 60 Minutes transcript and Roberts' statements that cases were disappearing from OPR and that senior employees have gone unpunished. He said he asked Roberts what he was talking about and that Roberts responded that he was talking about Ruby Ridge and Waco.13 Jordan said he replied that this was not part of the transcript. Jordan told us he did not recall Roberts mentioning the SAC case in this meeting, although Jordan acknowledged that he was familiar with the issue.14
Jordan said he told Roberts that his allegations would be referred to the OIG and a letter was being written to that effect. Jordan said that he recalled Roberts saying near the end of the meeting that he had done nothing wrong and that they must do what they had to do.
Jordan described the meeting as "very businesslike." Jordan stated that Roberts "seemed fine with the OIG referral," although Jordan said that Roberts "seemed puzzled as to what this was all about."
Lowery told the OIG that the purpose of the meeting was to communicate with Roberts, not to criticize or discipline him. Lowery said the meeting was short, lasting approximately six to seven minutes. Lowery said that Jordan read Roberts' portion of the 60 Minutes transcript and that Lowery and Jordan "asserted [their] concerns about his allegations and statements." Lowery said that they explained their intention to send a letter requesting that the OIG investigate the allegations made by Roberts during the program, and they asked Roberts to give the OIG his full cooperation. Lowery said that Roberts stated to them that he had positive things to say about Jordan during the 60 Minutes interview, but those statements were not aired on the broadcast. According to Lowery,
Jordan thanked Roberts for those statements, but stressed that they must go by what aired on the program. Lowery said that they advised Roberts that they would provide him a copy of the letter to the OIG, and Roberts responded that we should get on with what we need to do. Lowery said that "not a cross word was spoken, no criticism was issued, and no one raised his voice."15
Jordan drafted a referral letter to the Inspector General on October 29. He gave a copy of the draft to Lowery, who forwarded it to Kenneth Wainstein, the FBI General Counsel. Wainstein suggested specifying in the letter the actual statements Roberts made in the 60 Minutes broadcast, and those quotations were added.16
The letter, signed by Jordan and addressed to the Inspector General, referred to Roberts' appearance on 60 Minutes and his statements regarding disparate treatment for different levels of FBI employees. It quoted Roberts' comments about cases disappearing and that the double standard of discipline would continue. The letter stated that Roberts' comments indicated a lack of confidence in the ability of FBI OPR to address these issues and concluded:
These remarks raise serious issues of concern to us. Given the gravity of [Roberts'] remarks, and his lack of confidence in this office to address these issues, we have directed Unit Chief Roberts to contact your office to provide additional details. Please contact me if I can be of further assistance in this matter.
Jordan said that on October 30, following an OPR Unit Chiefs meeting, he gave Roberts a copy of the letter. According to Jordan, when Roberts looked at the letter he asked, "What's this?" Jordan said Roberts appeared surprised by the content of the letter and must have misunderstood what was said at the meeting the day before. Roberts told Jordan he thought Jordan was going to report his conduct to the OIG. Roberts also stated that during his interview with 60 Minutes he had said some wonderful things about the Director, Lowery, and Jordan. Jordan said Roberts stated that in his 60 Minutes remarks he had been referring to old cases that he was prohibited from discussing on the program.
Jordan said he told Roberts that even though a handful of people at CBS heard him say that he was referring to old cases, millions of people who watched the broadcast were given a different message. Jordan said he told Roberts that "he who creates ambiguity shall have that ambiguity resolved against him," and that Roberts had created the ambiguity, not Jordan. Jordan said he also mentioned that his 82-year-old mother, who was in a nursing home, had contacted him after the program and told Jordan that she had thought the FBI was "on the level," and asked if Jordan would ever be able to change the FBI.
According to Roberts, he received the letter on the morning of October 30, when he went into Jordan's office to discuss with Jordan the assignment of OPR cases. Roberts said he told Jordan that his unit had twice as many investigations pending (with three fewer supervisors) than the other Internal Investigative Unit, and that he intended to assign his cases to supervisors in the other OPR Investigative Unit. Roberts said he had discussed this with the other Unit Chief, who had concurred, and Jordan agreed with this proposal.
Roberts said that Jordan then raised the 60 Minutes broadcast. According to Roberts, Jordan stated that he had received calls about the program from FBI SACs, and they had informed Jordan "I had better check my shorts, because I may be bleeding from my own guy." Roberts said he clearly remembered this comment and found it very disturbing. He said that Jordan then commented about his mother seeing the 60 Minutes show from a hospital bed, and that Roberts responded that, as he had told Jordan before, "[I] had sung your praises and I couldn't be more specific. I had permission to be on that show." Roberts said he also raised the SAC case again and the fact that he had previously informed Jordan about the matter. Roberts said he told Jordan he had put a routing slip in Jordan's box that discussed the case and "how bad that makes us look."17
According to Roberts, Jordan then said that Roberts had "dissed" Jordan and the FBI Director on 60 Minutes, and that Roberts "must have been naive to go before 60 Minutes and expect them to put everything on. You are my senior guy and millions of people heard what you said." Roberts said he asked Jordan if he was "thinking about getting rid of me," and Jordan responded "no." Roberts said that Jordan then provided him with a copy of his referral letter to the OIG. Roberts said he was surprised by the contents of the letter, because he had understood from the meeting the afternoon before that he was going to be referred to the OIG.
Jordan told the OIG that he did not recall ever using the term "dis" in any conversation with Roberts, and that he doubted he did because it is not a term he typically uses. However, he said that he could not say with certainty that he did not use this phrase in a conversation that had occurred weeks earlier. Jordan added that he has used the phrase about "bleeding internally" in other conversations as a reference to someone who is unaware that something is wrong, but he did not recall using the specific phrase "bleeding from my shorts" in this meeting with Roberts. Jordan said he questioned Roberts about why he had made the comments about the Director and Jordan on 60 Minutes. Jordan said he definitely told Roberts that he thought Roberts' comments created a reasonable inference that the Director and Jordan were not honest in their handling of OPR cases. Jordan said he believed he told Roberts that his inference that the OPR process was corrupt or that neither the Director nor Jordan would ever change the process was a "slap in the face."
The FBI drafted a response to the 60 Minutes broadcast, which it sent to 60 Minutes on November 1, 2002, and also posted on its Intranet website.18 This letter, signed by Michael Kortan, Chief of the FBI's Public Affairs Section, first discussed the FBI's foreign language program and the FBI's security program. It then stated:
Finally, contrary to allegations in your story, reports of employee misconduct are given high priority and exhaustively investigated, and punishment is imposed in an equal manner. While allegations of disparate treatment were raised in the early and mid 1990's, the FBI has implemented policies to protect against actual or perceived unfairness in the disciplinary process. Importantly, under Director Robert S. Mueller, any serious allegation of wrongdoing made against an FBI employee is reviewed by the Department of Justice, Office of the Inspector General - making it impossible for misconduct to be ignored, much less rewarded, as alleged in Sunday's report.
V. NOVEMBER 6 MEETINGS
Jordan said that in the next several days, the 60 Minutes broadcast continued to be discussed in OPR and throughout the FBI. For example, on November 4, Jordan received an e-mail from an OPR employee complaining about Roberts' statements on 60 Minutes and questioning whether Roberts had received approval to be on the show.19 In addition, Jordan said that during a meeting of FBI Assistant Directors, Lowery discussed the 60 Minutes broadcast and stated that Roberts had been asked to report his knowledge of misconduct to the OIG.
Jordan said that after these two events, he realized he needed to address OPR employees about the 60 Minutes broadcast. He said he believed he needed to reassure them about their work and mission. He said that OPR employees were questioning if Roberts' statements were true or false, and Jordan believed that this uncertainty warranted a management response. He added that from his legal education he recalled case law suggesting that failure to reply to a direct accusation of misconduct can be perceived as evidence of an admission.
He said he therefore decided to discuss the 60 Minutes interview at OPR's monthly all-employees meeting. He e-mailed Lowery on November 4, stating "I will probably have to address this matter with OPR as a whole."20
OPR's regular monthly all-employees meeting was scheduled for Thursday, November 7. Jordan said that because he was going to be on annual leave on November 7 and 8, he asked his secretary, Brenda Roberts, to change the meeting to the afternoon of Wednesday, November 6.21
On the morning of Wednesday, November 6, Jordan held the weekly meeting of OPR Unit Chiefs, which is regularly scheduled on Wednesday mornings. Attending this meeting were Thomas Monroe (the Unit Chief of Internal Investigative Unit I); Brian Fortin (the Unit Chief of Adjudication Unit I); Daniel Dubree (the Unit Chief of Adjudication Unit II); Dennis Franko (the Unit Chief of the Administrative Unit); and Patrick Kiernan from the LEEU (attending on behalf of LEEU Unit Chief Belinda Johns).
Roberts was on sick leave on November 6 and had a doctor's appointment that afternoon. Attending the meeting in his place was Supervisory Special Agent Judith Chilen, who worked under Roberts in Internal Investigative Unit II, and was the Acting Unit Chief in Roberts' absence.
According to our interviews of the participants in the meeting and our review of their notes, Jordan began the meeting with routine business. One of the topics he mentioned was the fact that a vacancy announcement for the OPR Deputy Assistant Director position would be posted that afternoon.
Also on the meeting agenda was an item described as the "Monthly OPR Meeting Agenda." Toward the end of the Unit Chiefs' meeting, Jordan addressed this issue, discussing his intent to raise Roberts' 60 Minutes interview at the all-employees meeting. Jordan stated that he had received many inquiries about the Roberts interview and was concerned about how the show affected OPR. Jordan reported that Roberts had permission to appear on 60 Minutes. Jordan then said he intended to read quotes from the transcript at the meeting, and Jordan then read Roberts' statements from the transcript of the 60 Minutes program to the group. Jordan discussed two quotes from the transcript: the "vaporization" quote and the statement about things not changing no matter who comes in to the FBI. Jordan stated that he had directed Roberts to report the disappearing cases to the Inspector General. Jordan also said that other positive comments made by Roberts about the FBI did not make it on the show. Jordan said that the show left a negative impression about the FBI, that "we're not on the level," and he said that he was not going to let that happen on his watch. Jordan stated that he was being asked a lot of questions about the interview, both inside and outside OPR, and that as a manager he could not ignore the issue, but needed to address it with OPR.
According to several participants at the meeting, someone mentioned that Roberts was not going to be in the office that day. Jordan responded that he wished Roberts could be at the all-employees meeting, but that Jordan was scheduled to be out of the office for the rest of the week and that he did not want to put off the discussion for another month until the next scheduled all-employees meeting. According to several participants, Unit Chief Daniel Dubree suggested that Roberts be allowed to participate by speakerphone. Jordan asked Judith Chilen to contact Roberts and advise him about the availability of coming into the office for the meeting or participating by speakerphone.
Jordan told us that he asked Chilen and Dubree to take notes at the all-employees meeting, because he believed that whatever he said would be controversial or misquoted.
According to Jordan, after the Unit Chiefs' meeting he privately told Brenda Roberts, his secretary, that he was going to discuss the 60 Minutes interview at the all-employees meeting and that she might be uncomfortable. Although normally attendance at these all-employee meetings is mandatory, Jordan told Brenda her presence at this meeting was optional. Jordan said that Brenda did not respond. He said he asked her if she understood what he was saying, and she responded that she could not talk to him.22
Patrick Kiernan told us that when he returned to the LEEU at Quantico following the Unit Chiefs' meeting that morning, he wished that he had spoken up during the meeting about Jordan's intention to address OPR without Roberts being present.23 Kiernan stated that he believed the issues from the 60 Minutes broadcast needed to be addressed, but he believed there was a better way to do it than what Jordan was intending. Kiernan therefore called Jordan and suggested that if he intended to talk about Roberts and 60 Minutes at the all-employees meeting, Jordan needed to choose his words very carefully. Kiernan told Jordan this was a sensitive situation, and with one wrong word it could be perceived as retaliatory or derogatory against Roberts. Kiernan also suggested to Jordan that he should consider waiting to have the meeting until Roberts was back in the office, stating that the issue had already gone on for a couple of weeks (from the October 27 broadcast to November 6), so why not wait for Roberts to be present. Kiernan said that even having Roberts on the speakerphone was not the same as Roberts being present at the meeting. Kiernan also said to Jordan he thought it would be a good idea for Jordan to call Roberts and give him a choice of how to attend the meeting, by speakerphone or in person, and give Roberts a heads-up as to Jordan's intended remarks.
Kiernan said that in response to these suggestions, Jordan stated that he understood what Kiernan was saying but felt he could not ignore the issues at hand and would give Roberts an opportunity to address the group or respond to Jordan's comments. Jordan also stated that he did not want to call a special meeting to address this issue because then all the focus would be on Roberts.
Jordan acknowledged to us that Kiernan called him after the Unit Chiefs' meeting, stated that Roberts was a whistleblower, and expressed concerns about Jordan's plan to address the 60 Minutes issue at the all-employees meeting. Jordan said he told Kiernan he was aware of what Kiernan was saying but that he saw no reason not to discuss the issues with OPR personnel. Jordan said he therefore decided to continue with the meeting as planned.
Chilen called Roberts that morning, as Jordan asked, to discuss the all-employees meeting. Chilen told us that when she began to tell Roberts about the Unit Chiefs' meeting and Jordan's planned discussion of the 60 Minutes broadcast at the all-employees meeting that afternoon, Roberts seemed upset and wanted to know why Jordan had not called him about it. Roberts questioned Chilen why she was put in the middle of the matter. Chilen asked Roberts whether he wanted to attend the meeting via speakerphone, but Roberts declined, stating that he had a doctor's appointment that precluded him from participating in the meeting.
Roberts told us that he was on sick leave November 6, and that he had a pre-arranged doctor's visit during the time Jordan had scheduled the all-employees meeting. Roberts said he told Chilen that he would inform Jordan there was no need to have him on a conference call during the meeting. Roberts told us that he had never heard of someone participating in an all-employees meeting via speakerphone and saw no need to participate. Roberts said he spoke with his wife, Brenda, and told her to leave Jordan a message that it was not necessary for him to participate by telephone.
We interviewed approximately 20 people who attended the all-employees meeting on November 6, and also reviewed notes from the meeting taken by several participants. While the attendees did not remember in identical detail what was said, there was little substantive difference on many details among most people we interviewed, and the notes from the meeting were generally similar. However, several people differed in their recollection about the tone of the meeting and their interpretation of what was said. The following is our best reconstruction of what was said at the meeting, based upon notes taken during the meeting and the recollections of participants.
The meeting began with Jordan making standard announcements, including birthdays, anniversaries, and awards. Among the substantive topics he then discussed, Jordan announced that the FBI Director had given him permission to fill the OPR Deputy Assistant Director slot.
Jordan next discussed the 60 Minutes broadcast. Jordan began by stating that he had heard from FBI employees who asked him about the 60 Minutes show. Jordan said that a lot of people say the FBI is a family, and he believed that to be true. He added, "We bond together because our work doesn't make any friends." Jordan said that there are disagreements in any family. He said that it was difficult for him to talk about those disagreements. He said that it would be easier to do and say nothing about the disagreements, but he was not that kind of manager.
Jordan said that Roberts had been offered the chance to participate in the meeting by speakerphone but that he had declined. Jordan reported that he (Jordan) was going to be on leave for the rest of the week, and he did not want to wait another month to address the issue. Jordan said he would have preferred to keep the matter private, but 80 million people had seen the 60 Minutes broadcast.
Jordan said that there might be some misperceptions about what had happened and what was said, so he wanted to put some facts on the table. He said that through an attorney Roberts had asked permission to be interviewed by 60 Minutes, and that the FBI's Office of Public and Congressional Affairs had given Roberts permission in writing, as long as he did not discuss specific cases.
Jordan explained that the 60 Minutes segment focused on a contract linguist at the FBI. Jordan read portions of the transcript, including Roberts' statements. Several participants at the meeting provided us varying perceptions about how he read the transcript. Brenda Roberts stated to us that when Jordan read the transcript, his voice and expression showed his distaste for what Roberts had said. Brenda Roberts also said that when Jordan read Senator Grassley's statements, his voice changed, and he read Senator Grassley's remarks in disgust.
Most others we interviewed stated that Jordan read the transcript in a conversational tone, without inflection, in a strong tone, confident, or emphatic. No one other than Brenda Roberts indicated that Jordan read Senator Grassley's comments in disgust.24
However, several attendees said it was clear that Jordan was upset by the broadcast. For example, one employee stated to us it seemed that Jordan had taken personally Roberts' comments that nothing would change no matter who was in charge; another said it was her belief that Jordan took Roberts' comments as a slap to his leadership.
After reading from the transcript, Jordan said that he believed that what was aired on the broadcast was not the totality of what Roberts had told 60 Minutes. He said the portion of Roberts' remarks that 60 Minutes decided to use would lead a reasonable person to believe that there are "ongoing cover-ups of misconduct in the FBI." Jordan said that this was not true, and that every FBI employee has an obligation to report misconduct in the FBI. Jordan said he was uncertain what Roberts was referring to when he stated that cases were disappearing or vaporizing, and that he had directed Roberts to contact the Inspector General and provide the specific allegations to him. Jordan said that he had written a letter to the Inspector General, quoting the transcript, and that he had asked Roberts to provide to the Inspector General whatever information he was referring to.
Jordan repeated that Roberts told him that he had said a lot of favorable things about OPR that were not broadcast, but that in reality CBS airs what it wants. Jordan said that in Roberts' defense, what was aired was probably quoted in the most unfavorable light. He said 5 CBS executives probably heard the entire interview, but 80 million viewers heard only what was broadcast.
Jordan then stated "he who creates ambiguity will have that ambiguity resolved against him." He did not explain what he meant by that statement.
Regarding Roberts' statement in the broadcast that nothing is going to change in the FBI, Jordan said that to the extent that it was a reflection on him, Roberts was wrong. Jordan said he had told the FBI Director that he would "play this job straight up, like every other job I've ever had." Jordan added that no one in the organization could make him "cover up," and anybody who saw Jordan cover up anything had an obligation to go to the Inspector General.
Jordan stated that it was difficult to talk about the 60 Minutes broadcast. He said he thought highly of Roberts, that he had faith in his integrity, but that the best of families have issues and problems, and that the most dysfunctional family is the one that doesn't talk about things.
At that point, Jordan opened the meeting to questions. One OPR employee asked what the FBI Director's response was to the 60 Minutes interview. Jordan said he did not want to speak for the Director but he believed the Director's response would be the same as his.
A second OPR employee stated that Roberts' comments had stigmatized all of OPR and had given all of OPR a bad name, and asked what they were supposed to say when asked questions about Roberts' comments. Jordan responded that he had no answer for that question. He said that many FBI employees were wondering about "our integrity." Jordan said he had asked the Director if he could issue a rebuttal to 60 Minutes. Jordan said that 60 Minutes was not in the business of telling "both sides," but the FBI had sent a letter to 60 Minutes.
A third employee asked if there had been any discussion about how to remove people from their job who had been in it too long and had lost their effectiveness. According to most attendees, Jordan gave no response to this question.25
A fourth employee stated that OPR now had a double responsibility to prove its integrity, and related this situation to the ongoing crisis within the Catholic Church.
Jordan ended the meeting by saying that it was not true that he and the Director could not fix things, that he had only been here for two months, and he asked the OPR employees to give him a chance to make things better. He then stated he loved being their boss.
Roberts' wife, Brenda, said that at the all-employees meeting, she became upset by what Jordan was saying and began feeling very warm and very sick. She stated that she could not believe that Jordan was "destroying" her husband in front of everyone. She said she did not think she would physically make it through the meeting and thought she would pass out. Another employee, who saw her hand shaking, held her hand during the meeting. Brenda Roberts said that everyone kept looking over to her and she tried to maintain her composure.
She said there was a solemn atmosphere after the meeting, and another employee asked her if she was okay. She replied that not one person came to Roberts' defense during the meeting. She said she then collapsed at a desk while leaving the meeting, and began sobbing. Another employee brought her cold towels. Brenda Roberts said that she began walking back to her office, but she started breathing rapidly and her head was hot. She then went to the FBI's Health Services Unit. She said her blood pressure was very high, and she remained at the Health Services Unit until her blood pressure went down. She said she then returned to work, but she found herself crying repeatedly.
Both Brenda Roberts and John Roberts told us that after the all-employees meeting they believed there was a change in attitude towards them by OPR staff. John Roberts stated that he believed his professional standing was severely damaged by Jordan's comments, which were relayed to him by other employees. He said people looked away or down when he passed them, and there was no small talk. He said that it appeared to him that OPR employees were uncomfortable with him, and that the mood in the office toward him was very cold.
Brenda Roberts also stated that since the all-employees meeting there has been a chilled atmosphere toward her and employees avoid looking at her. She said that since the meeting she found herself looking at the floor when walking in the halls, and other employees who normally spoke to her now avoided her.
Others we interviewed, however, denied that they have treated Roberts or his wife differently. They said that Roberts continued to handle his responsibilities the same as before the 60 Minutes broadcast, and he was treated by other staff similarly to before the broadcast. Many said that Roberts remained upbeat and positive in the office, and that they did not witness any changes in his demeanor or how others treated him. Some said that Brenda Roberts talked less to others. One said that after the 60 Minutes interview, Brenda Roberts seemed more withdrawn and that people have not ignored her but have respected her desire not to talk.
VI. APPOINTMENT OF AN ACTING DEPUTY ASSISTANT DIRECTOR IN OPR
As noted above, the FBI OPR Deputy Assistant Director (DAD) position had been vacant since the former DAD retired in March 2002. Shortly after assuming office, Jordan requested permission to fill the position. He received permission to advertise for the position, and the position was posted on November 6, the day of the all-employees meeting. At that meeting, Jordan announced the posting of the DAD position. However, he did not disclose or discuss with any employee that he intended to fill the position on an acting basis.
On November 12, 2002, in an electronic communication to all OPR staff, Jordan announced that he was appointing Brian Fortin to be the Acting DAD until the position was filled permanently.26 Fortin said he was unaware that an Acting DAD would be appointed until Jordan named him to the position.
Jordan told the OIG that until the permanent DAD position was posted, he could not appoint an Acting DAD, since the position did not "exist" according to the FBI's Administrative Services Division. He said that when he received permission to post the permanent position, he decided to appoint an Acting DAD, because he thought it would take 90 to 120 days to get a permanent DAD in place. He said that he chose Fortin to be the Acting DAD because he was well respected, was an attorney, and was actively seeking promotions, including positions outside of OPR, and that Fortin's having the Acting DAD position could help him further his career. Jordan said one of his critical rating elements is to support the development of subordinates. Jordan said he advised Fortin that he would not look to appoint him to the permanent position, but that this temporary appointment would provide Fortin with invaluable experience in being considered for a promotion.
We asked Jordan why he did not select Roberts to fill the Acting DAD position, since Roberts was the most senior Unit Chief in OPR and had been assigned to be the Acting Assistant Director when Jordan had gone on leave two times before the 60 Minutes broadcast. Jordan responded that he knew that Roberts was not seeking promotion. Jordan told us that in approximately late September or early October 2002, he had briefed Director Mueller about various issues in OPR, including Jordan's naming Roberts as an Acting AD in Jordan's absence. Jordan told Director Mueller that Roberts had previously informed him that he had been passed over for transfers and promotions, and that because of historical events Roberts believed he would not be given a fair opportunity for advancement. Director Mueller informed Jordan that he wanted to see Roberts' name in a "package" for promotional opportunities and asked Jordan to relate that to Roberts on the Director's behalf. Jordan said he told Roberts about the Director's comments, stating that although Jordan was not looking for Roberts to leave OPR, the Director had opened the door for him to seek promotions, if he wanted. Jordan said that since that time, however, he was not aware of Roberts applying for any promotions.
Jordan acknowledged to us that the 60 Minutes interview had an impact on his decision to select Fortin as the Acting DAD. Jordan told us that he believed if he selected Roberts for the Acting DAD position "during this post-60 Minutes environment, it could have a negative impact on OPR." Jordan also stated that Roberts had been the Acting AD for several weeks during Jordan's absence and had the opportunity to open cases, but Roberts "chose not to do that"; rather Roberts went on television and said "we're corrupt." Jordan said he felt that Roberts "had his shot at being promoted," but that Roberts diminished the ability of OPR to do its job by his statements on 60 Minutes.
Jordan said he did not consult anyone regarding his choice of Fortin for the Acting DAD position. He said he did not believe this was a "big call," and was an easy managerial decision. He said he did not consult with his supervisors, Gebhardt and Lowery, who were busy handling important FBI matters. Jordan also said he did not discuss with any of his Unit Chiefs why they were not picked.
Roberts told us that he considered it significant that he was not made the Acting DAD. He noted that prior to the 60 Minutes broadcast, he had been appointed Acting Assistant Director on two occasions and was never criticized for his performance in that position and, in fact, understood that Jordan was pleased with his performance.
Roberts said that no one talked to him about the position before Fortin's selection. Roberts said that he had no idea that Jordan planned to fill the position on a temporary basis. He said that the information he had received from Jordan prior to Fortin's appointment led him to believe that this position would not be filled with an Acting DAD. Roberts also noted that Fortin was junior to him both in tenure within the FBI and time within OPR, and that unlike Roberts, Fortin had not had field supervisory experience. Roberts said that he believed being named Acting DAD would have been significant because it would have enhanced his credibility and his ability to obtain a promotion.
Roberts said that he had last applied for a promotion a couple of years ago. He said because of his age and his ability to retire in a year, he thought there was no benefit in applying for ASAC positions now. He said that an ASAC position would be a lateral move with no increase in pay and he would have to remain in that position for a couple of years before he could realistically be promoted again. He said he had considered applying for DAD positions at FBI Headquarters, but he did not specifically mention this to Jordan during any of their conversations. He added that he did not apply for the permanent FBI OPR DAD position because he thought that would be a fruitless exercise on his part, in light of the reaction to the 60 Minutes interview, his not being named Acting DAD, and his involvement in the Ruby Ridge and Potts investigations.
No one in FBI OPR to whom we spoke had been consulted or was aware that an Acting DAD would be appointed. Fortin said Jordan did not tell him why he was selected. Many people we interviewed in OPR were surprised that Fortin, rather than Roberts, was selected to be the Acting DAD. They stated that they thought that Roberts, as the most senior OPR Unit Chief and the person who served as the Assistant Director in Jordan's absence, would have been selected for the position.27
VII. OIG ANALYSIS
Based on the evidence we found, we do not conclude that Jordan or other FBI officials intended to harass or threaten Roberts for his statements on 60 Minutes. We also do not conclude that the evidence supports many of the allegations about Jordan's and the FBI's actions towards Roberts after the 60 Minutes broadcast. However, we conclude that some of the allegations were substantiated and we believe that Jordan exhibited poor judgment in several instances, particularly several of his statements at the OPR all-employees meeting. In addition, we believe that Jordan passed over Roberts for the Acting DAD position in large part because of Roberts' statements on 60 Minutes, an action that left the clear appearance of retaliation.
With regard to the meeting between Roberts, Jordan, and Lowery on October 29, we have little doubt that the meeting was tense and that it was apparent that Jordan was angry about Roberts' statements on 60 Minutes. We believe that Jordan clearly communicated his belief that the statements were a "slap" at him (and the FBI Director). Jordan objected to the broadcast's implication that cases continued to "disappear" and "vaporize," that a double standard of discipline would continue no matter who was in charge, and that there were cases since September 11 where FBI employees who had committed misconduct "were not reprimanded and were even promoted." Jordan told us that he thought that Roberts had either lied or deliberately misstated facts on the 60 Minutes broadcast. Although the October 29 meeting may have been "businesslike" (as Jordan described it), and no one may have raised his voice or uttered a "cross word" (as Lowery described it), we have no doubt that Roberts understood Jordan was upset with him.28
However, we do not believe that Jordan or Lowery threatened Roberts, and we do not conclude that Jordan stated in the meeting that he was referring Roberts to the OIG on misconduct charges, as Roberts believed at the time. Roberts told us that at the October 29 meeting, after Jordan read from the transcript of the broadcast and while holding the transcript in his hand, Jordan said he was referring "this" to the OIG. We think there was a miscommunication between Roberts and Jordan about the "this" that Jordan was referring to the OIG. Roberts interpreted Jordan's statement as accusing him of misconduct and that his actions were being referred to the OIG; Roberts therefore responded that he had done nothing wrong. In fact, Jordan and Lowery intended to, and did, refer Roberts' allegations that cases disappeared or vaporized to the OIG for review; they were not referring Roberts to the OIG for misconduct.
When Roberts received the referral letter the next day, he was surprised to learn that he was not being referred to the OIG for misconduct, and that the OIG was being asked to review Roberts' allegations. Roberts then told Jordan that he had thought Jordan was going to report him to the OIG. This was a misunderstanding on Roberts' part.
We also believe that there was a difference in what Roberts intended by his statements aired on 60 Minutes and the implication they left. Roberts told us that with regard to his statement that he knew "what has been glossed over and what has, frankly, just disappeared, just vaporized and no one disciplined for it," he was referring not to the actual investigations of cases by OPR, but rather to the adjudication of discipline. He cited Ruby Ridge and the Potts retirement party as prime examples of cases where he believed discipline in a case had "disappeared." However, both of these cases occurred before Jordan was appointed to head the FBI OPR and before Director Mueller joined the FBI.29
Roberts then was asked on the 60 Minutes broadcast about a double standard of discipline, which Roberts believes to be a continuing and intractable problem. Roberts stated on the broadcast that he thought that the double standard of discipline would continue "no matter who comes in." Then, when asked whether "people were involved in misconduct and were not, let alone reprimanded, but were even promoted," Roberts responded "absolutely." However, Roberts told us he did not mean to imply that investigations of cases continued to "vaporize," but he does believe that within the FBI there still exists a "club atmosphere" that does not seem to allow for change. He said that there was a continuing difference between higher level and lower level FBI employees in how cases were adjudicated by the FBI and how people were promoted, even when under investigation or after being disciplined. He cited as examples of this the SAC case mentioned earlier in this report and several other recent cases. He told us that he did not believe that Director Mueller, Jordan, or FBI upper management could change that double standard.30
However, the juxtaposition of Roberts' comments on 60 Minutes that he knew of cases that "disappeared" with his claims about a continuing double standard of discipline left the clear impression that he believed investigations of misconduct continued to disappear and that he was implicating Jordan and Director Mueller in continuing cover-ups. We can understand Jordan's concern about the implication left by the 60 Minutes broadcast that he and OPR were complicit in allowing cases to disappear, particularly since Jordan was new to OPR.
We believe it was not improper for the FBI to refer to the OIG the allegations Roberts made on 60 Minutes, given the seriousness of the charges. In fact, this was a prudent step for the FBI to take, in light of the conflict it would present for the FBI to investigate those claims itself.
With regard to the FBI's rebuttal letter to 60 Minutes that it posted on the FBI Intranet site, we do not believe there was anything improper about the letter or the posting. In the letter, the FBI responded to the program without attacking Roberts. We do not criticize the FBI for making its position known, either to FBI employees or to 60 Minutes.
With regard to the November 6 all-employees meeting, we do not believe that Jordan intended to retaliate against Roberts or attempted to threaten or undercut him by discussing the 60 Minutes program at the meeting. Nor do we fault Jordan for discussing statements from the program with OPR staff, who were understandably concerned about the implication of the program. As to Jordan's remarks at the meeting, we think most of them were not inappropriate. By and large, we think Jordan did not cross the line in what he said or make retaliatory statements towards Roberts. Most of the OPR staff we interviewed did not interpret Jordan's remarks as retaliatory to Roberts, and most appreciated that Jordan addressed the 60 Minutes broadcast with them.
For example, we do not conclude that Jordan's reference to the FBI as a "family" was intended to send a message that no employee should raise allegations of misconduct or criticize the FBI to outsiders. Almost everyone we interviewed stated that this phrase is commonly used throughout the FBI, and they read no sinister meaning from Jordan's use of the term. The FBI employees we interviewed did not believe he was using the phrase to warn them not to go outside the FBI or that he was threatening those who did. We also did not substantiate, as was alleged, that Jordan read the 60 Minutes transcript in a disgusted tone, or that he showed distaste for Senator Grassley when referring to him.
However, we concluded that Jordan exhibited poor judgment with regard to several aspects of the November 6 meeting. First, with regard to the timing of the meeting, Jordan learned that Roberts could not attend the meeting on November 6 because he was on sick leave that day. The meeting had been scheduled originally for Thursday, November 7, but because Jordan was scheduled to be on leave on November 7 and 8, he moved the meeting up one day. At the Unit Chiefs' meeting on the morning of November 6, Jordan disclosed that he intended to discuss the 60 Minutes program at the all-employees meeting later that day. At that time, he learned that Roberts was not in the office that day. In response to a suggestion from a Unit Chief, Jordan asked a subordinate in Roberts' unit to notify Roberts of the meeting and offer him the opportunity to participate by speakerphone.
We believe that Jordan should have talked to Roberts personally about what he planned to discuss at the all-employees meeting.31 We also think Jordan should not have discussed this topic at a meeting that Roberts could not attend. While Jordan said he did not want to wait another month to address the issue, and he did not want to call a special all-employees meeting to address the 60 Minutes issue by itself, he could have rescheduled the all-employees meeting for a few days later - the following week - when both he and Roberts would be in the office.32 We agree with Kiernan's suggestions to Jordan that he wait until Roberts was back in the office to have the meeting, and that offering Roberts a chance to participate by speakerphone, even if he were available, was not the same as him being there.
Second, we believe that it would have been prudent for Jordan to consult with FBI officials before the all-employees meeting to seek guidance on what he could and should say. The meeting presented a sensitive situation and Jordan needed to choose his words carefully. We believe that Jordan would have been wise to seek guidance from the FBI Office of General Counsel. Although Jordan informed his supervisor, Lowery, that he intended to address the broadcast at the meeting, he sought no guidance or legal advice on what he planned to say. While we do not suggest that a manager must always seek legal guidance before addressing his staff, this situation was particularly sensitive and presented unusual issues, and Jordan would have been well advised to seek legal guidance.
Third, we are concerned about a statement Jordan made - both to Roberts on October 29 and during the all-employees meeting on November 6 - that "he who creates ambiguity shall have that ambiguity resolved against him." It is not clear what Jordan meant by this statement, or what Jordan was implying about what the "resolution" against Roberts would or should be. Jordan told us that Roberts' inference that OPR was not "on the level" was an ambiguous statement that could not be supported. Jordan said his quote was not a threatening statement, but a comment that "the one who creates language is responsible for the conclusions or reasonable inferences drawn from that language." Jordan said his anticipated "resolution is that the truth will come out and that John Roberts will have to answer in some forum for what he said to millions of CBS viewers. Simply, the resolution is the truth."
Yet, Jordan's statement implied that Roberts would have some action resolved against him. Although Jordan stated that he meant that the resolution of Roberts' statements on 60 Minutes was simply that the truth would ultimately prevail, that inference is not at all clear. Rather, a reasonable inference from Jordan's statement was that some action would be taken against Roberts for his comments on 60 Minutes. We question Jordan's use of this statement, which itself was ambiguous.
Fourth and even more troubling was Jordan's lack of response to a question at the all-employees meeting about whether there had been any discussion about how to remove people from their job who had been in it too long and had lost their effectiveness. Clearly, this question referred to Roberts. According to multiple witnesses, Jordan did not respond to the question. In our view, this lack of response left the impression that Jordan agreed with the statement or, at a minimum, did not repudiate it. Instead of saying he had no intention of forcing Roberts to leave OPR, Jordan said nothing.33
Finally, we believe Jordan's selection of Fortin to be the Acting DAD, and particularly the time and manner in which Jordan made the selection, left the clear appearance of retaliation against Roberts for his statements on 60 Minutes.34 Before the broadcast, Jordan had selected Roberts twice to be the Acting AD in his absence. Roberts also was the most senior Unit Chief in OPR. However, shortly after the 60 Minutes appearance, and just after the all-employees meeting, Jordan selected Fortin to be the Acting DAD while the permanent position was being filled. Jordan said he selected Fortin because he was an attorney, was well respected, and was seeking promotions.
Yet, Jordan acknowledged that Roberts' 60 Minutes interview affected his choice. For example, Jordan stated to us that he believed that if he selected Roberts for the Acting DAD position "during this post-60 Minutes environment, it could have a negative impact on OPR." Jordan added that Roberts had been the Acting AD for several weeks during Jordan's absence and had "a shot at being promoted" and had the "opportunity to open cases," but Roberts "chose not to do that" and instead went on 60 Minutes and said "we're corrupt."
Before making his selection of Fortin, Jordan did not determine whether Roberts, or anyone else in OPR, was interested in the position. After the selection, Jordan did not discuss with Roberts, or anyone else, why he selected Fortin instead of Roberts. Many of the OPR employees we interviewed told us they were surprised that Jordan had selected Fortin for the Acting DAD position, not Roberts, the most senior Unit Chief and the person who had filled in as the Acting Assistant Director for Jordan in his absence. Several told us it appeared to them the selection was in retaliation for the 60 Minutes interview.
In sum, we recognize that the statements by Roberts on 60 Minutes complicated Jordan's selection of someone to fill the Acting DAD position. However, we believe Jordan's selection of Fortin, including the timing of it and the way it was handled, left the clear appearance of retaliation against Roberts.
We do not believe that Jordan intended to threaten or harass Roberts for his statements on 60 Minutes. We also do not believe that it was improper for Jordan and Lowery to refer the allegations Roberts made on 60 Minutes to the OIG for review. Nor do we conclude it was improper for Jordan to address the 60 Minutes interview at the all-employees meeting.
Yet, while most of Jordan's statements at the meeting were not inappropriate, we believe he exhibited poor judgment in several respects. We believe that he should have attempted to schedule the meeting when Roberts could attend or at least personally told Roberts about the meeting and what he intended to say. We also believe he would have been wise to seek guidance about the meeting and what he could and should say about the 60 Minutes broadcast. We question the appropriateness of Jordan's statement at the meeting that "he who creates ambiguity shall have that ambiguity resolved against him." Even more troubling was his lack of response to a question that suggested that Roberts should be removed from OPR. Finally, we believe Jordan's selection of another Unit Chief to be the Acting DAD, including the timing of it and the way it was handled, left the appearance of retaliation against Roberts for his statements on 60 Minutes.
Glenn A. Fine
Attachment 1 - Senators Patrick Leahy and Charles Grassley's letter to FBI Director Robert Mueller
Attachment 2 - Michael Kortan's letter to Stephen M. Kohn
Attachment 3 - Transcript of the 60 Minutes broadcast
Attachment 4 - Robert J. Jordan's letter to Glenn A. Fine
Attachment 5 - Michael P. Kortan's letter to Mr. Don Hewitt