In the wake of President Donald Trump’s firing of FBI Director James Comey, there have been a handful of new revelations reported on the status of the investigations into Russian interference in the 2016 election and whether Trump associates coordinated with the Russians’ efforts. To better understand the significance of some of these new details, I turned to Just Security’s Andy Wright, who has loads of experience with congressional investigations from his previous work in the White House Counsel’s office and on Capitol Hill. I also asked the Brennan Center’s Michael German, a former policy counsel for national security and privacy for the American Civil Liberties Union, as well as a former FBI special agent.
Q. POLITICO reported that Comey recently told senators that its Russia investigation “had been effectively stalled due to a lack of access to prosecutors and because there was no one at the Justice Department to guide the probe forward.” What’s the significance of this? How would it be remedied?
AW: I would largely defer to an FBI agent or DOJ prosecutor on that question. However, one way to get the resources you need in the Executive Branch is to complain about their lack to your allies in Congress. Often, much to the chagrin of senior leaders subject to the pressure, congressional overseers, authorizers, and appropriators can be essential to pressuring recalcitrant superiors to support a resource request.
MG: It seems odd that Comey would be making this complaint so late into the investigation (it might have been more of an excuse than a complaint), but obviously any instability in the top ranks of the Justice Department will cause difficulties for FBI leadership, particularly in a case of this magnitude. Access to prosecutors typically comes through the U.S. Attorneys’ Offices, at least in criminal cases. FISA requests go through main Justice, so the lack of a confirmed DAG may have been a crimp in the counter-intelligence investigation, but this issue should have been addressed some time ago, as the investigation began last summer.
Q: NBC reported that Trump has hired a private law firm to send a certified letter to Sen. Lindsey Graham (R-S.C.), a member of the Senate Judiciary Committee, saying the president has no connections to Russia. The letter is in response to Graham’s remarks that he intends to look into whether Trump has any business dealings with Russia.
Will this satisfy Graham? Should it?
AW: Congress needs to ask the question in a formal letter so that whatever comes from this law firm is in response and subject explicitly to False Statements regulation. The lawyers who sign that letter will also have their bar licenses on the line with respect to the veracity of their representations. But more importantly: Congress needs to ask for documents to make its own judgment: i.e., taxes and other records. And they should ask for them from Treasury as well. That is also the first step toward a subpoena if they get stonewalled.
MG: I agree with Andy – Congress has the appropriate tools to get the information it needs on the record. The Comey firing should accelerate the pace of these congressional investigations.
Q: We’ve learned that Senate Russia investigators “have sent a request to the Treasury Department’s criminal investigation division for any information related to President Donald Trump, his top officials and his campaign aides.”
What’s the significance of this? What type of information are they looking for/could they get?
AW: First, the Treasury Department has access to Donald Trump’s tax records. To the extent he has self-reported business ties, Treasury has those records. Second, the Financial Crimes Enforcement Network (FinCEN) at Treasury handles our sanctions, counterterrorism finance, and related financial intelligence work. Therefore, FinCEN will have records and information about financial dealings with Russian affiliates far beyond anything reported in taxes.
The big procedural question will be whether the Department of Treasury under Secretary Steven Mnuchin resists providing the information. Watch that space for a brewing subpoena fight.
MG: The Treasury Department also receives anti-money laundering “suspicious activity” reports from banks, casinos, securities firms, and other financial institutions, which have increased dramatically since the Patriot Act expanded these authorities. Treasury doesn’t tell the financial institutions what is suspicious and there are serious penalties for failing to report, so there is a lot of defensive over-reporting. A rather innocuous suspicious activity report is what started the federal investigation of Gov. Elliot Spitzer, so there’s no telling what might be lurking in this data for an international businessman and casino owner.
Q: In his letter to FBI Director James Comey, Trump claimed that Comey, on three occasions, told the president he wasn’t under investigation. By making this information public, has the president waived his ability to assert Executive Privilege over these conversations, thereby keeping them private?
AW: The president has likely waived the ability to assert Executive Privilege over a conversation he has characterized. It would be patently unfair to use a privilege to silence the other party to a conversation in order to preserve the president’s as the sole characterization. That is inconsistent with waiver doctrine. In practice, though, that will be a political argument about the law rather than a legal argument.
MG: I agree the President likely waived the privilege over these conversations by characterizing them in the letter. At the very least Comey could deny such conversations took place. If the answer is “yes, but…” it might get a little more complicated.
Q: What can Comey now reveal as a private citizen that he couldn’t as FBI director?
AW: Comey will still have an obligation to protect the FBI and executive branch as institutions. He would not want to do anything to compromise open criminal or counterintelligence investigations. However, he does not have to manage working relationships now, so, in that sense, his tone and presentation can be much more freewheeling.
MG: Comey also has a remaining obligation to protect classified information, and it will be a little harder for him to get reassurance regarding what is classified and what is not from his former agency. But he will be more free to color outside the lines of what the government line is, but that hasn’t seemed like something that has limited him in the past.
Q: House Oversight and Government Reform Chairman Rep. Jason Chaffetz (R-Utah) has asked the Department of Justice inspector general to expand the scope of his review into “how the FBI handled the events surrounding the 2016 presidential election to include the firing of FBI Director James Comey.”
Is this significant? How will the results of the IG investigation be delivered? Are they made public? Delivered to Congress?
AW: This is significant because it is inviting another actor with a degree of independence, along with many congressional patrons, into an assessment of this presidential decision. As a White House lawyer, I would have some questions about whether the IG has jurisdiction to investigate a presidential decision emanating from Constitutional authority under Myers v. U.S. However, there are certainly internal DOJ machinations involved at the sub-presidential level related to this decision in the Attorney General’s and Deputy Attorney General’s offices. Moreover, there is precedent given the IG review of President George W. Bush’s firing of U.S. attorneys.
MG: The scope of the IG’s investigation into Comey’s statements about the Clinton investigation was written pretty broadly, but this request will give the IG extra cover to continue the investigation despite Comey’s dismissal. The IG only has jurisdiction over the conduct of current DOJ employees, but their interactions with other government officials or private persons can obviously be part of the investigation. The IG has a practice of issuing both classified reports and reports redacted for public release. Typically, Congress can see both.
Q: Finally, In Trump’s letter to Comey, he says he appreciates Comey informing him on three separate occasions that he wasn’t under investigation.
Would there be something inherently improper (or even illegal) about Comey telling Trump that unprompted?
MG: It would be highly improper and a violation of Justice Department policy for the FBI director to discuss a pending investigation with anyone outside of the Justice Department, especially to a potential subject of the investigation. There is also a specific Justice Department policy prohibiting FBI officials from discussing pending cases with White House staff except through the Attorney General or Deputy Attorney General, with some exception for national security and the like. This policy is designed to reduce the likelihood of political influence over FBI investigations. If it happened, it could also be considered an exculpating statement if any prosecution was brought, which highlights the danger in making any such statements.
Q: Would there be something inherently improper if Trump had asked Comey that question?
MG: It would be improper for the White House to seek information about a pending case directly from the FBI director, especially when the investigation involves the conduct of White House and Trump campaign officials. It has the appearance of applying political pressure to the investigation.