President Donald Trump repeated his totally bizarre attacks against his own attorney general on Wednesday, but this time he included a new target for his anger: the Justice Department’s inspector general.
Why is A.G. Jeff Sessions asking the Inspector General to investigate potentially massive FISA abuse. Will take forever, has no prosecutorial power and already late with reports on Comey etc. Isn’t the I.G. an Obama guy? Why not use Justice Department lawyers? DISGRACEFUL!
Not only is Trump’s attack on the IG dangerous, as he’s once again politicizing an institution whose independence is crucial to its work, but it’s also deeply misleading.
Because IGs are tasked with serving as watchdogs at every major federal agency, the IG’s office at DOJ is the “right forum to assess alleged department misconduct, including criminality, not a special counsel,” Just Security’s Andy Wright told me.
The IG’s very mission is “to detect and deter waste, fraud, abuse, and misconduct in DOJ programs and personnel,” and it “investigates alleged violations of criminal and civil laws by DOJ employees.”
Not only that, but “IG lawyers are Justice Department lawyers,” Wright noted. Those who work in the IG’s Investigations Division include special agents who develop cases for criminal prosecution, civil, or administrative action.
On Wednesday, Sessions defended himself against Trump’s attack, saying, “We have initiated the appropriate process that will ensure complaints against this Department will be fully and fairly acted upon if necessary.” But Trump said he isn’t happy with the process Sessions selected because the IG himself “has no prosecutorial power.”
Mark Zaid, a lawyer who specializes in national security, said this is a “misleading, irrelevant factual statement,” because in practice the IG works hand in glove with prosecutors all the time. If the IG develops a criminal case against someone, it then makes a recommendation to either a U.S. Attorney’s Office or the Justice Department, depending on the target, he said.
It’s not clear what “massive FISA abuse” Trump is referring to, but if he’s talking about the FBI’s application to spy on Carter Page, the former Trump campaign adviser, then it’s not even clear why you’d need prosecutorial power.
“At most, there are questions of proper procedures surrounding the [Page] wiretap, but not matters of criminal prosecution,” said Just Security’s Alex Whiting.
As for Trump’s claim that Horowitz is “an Obama guy,” he was appointed by President Barack Obama and sworn in as the Justice Department IG in 2012. But while leading the IG office, Horowitz repeatedly investigated the Obama administration. As Jack Goldsmith wrote at Lawfare, Horowitz “is probably best known to date for his highly critical 514-page report on the ‘Fast and Furious’ program run by the Bureau of Alcohol, Tobacco, Firearms and Explosives.” Horowitz also complained about the Obama administration’s denial of IG access to privileged or statutorily protected information. His career has benefited from Republican support as well. In 2003, President George W. Bush nominated Horowitz to serve on the U.S. Sentencing Commission.
Zaid, who’s dealt with Horowitz over the years through his law practice, said he’s always regarded the IG as “independent, fair and thorough.”
House Oversight Committee Chairman Rep. Trey Gowdy (R-S.C.) also came to Horowitz’s defense on Wednesday, saying he has “complete confidence in him and hope[s] he is given the time, the resources and the independence to complete his work.”
It’s worth remembering, too, that the State Department IG, Steve Linick, who was so sharply critical of Hillary Clinton’s email practices while secretary of State, is also an “Obama guy,” appointed by him in 2013.
The kind of politicization on display in Trump’s tweet is “poisonous to effective IG oversight operations,” said the Cato Institute’s Patrick Eddington, but he noted that politicization of an IG — either an entire office or a specific investigation — can also happen internally. Eddington said throughout his career — both at the CIA and working on Capitol Hill — he has repeatedly seen whistleblowers worried about approaching an IG’s office with a complaint or reports that whitewash wrongdoing.
Still, “Trump has offered no evidence that the DoJ IG, either under Obama or now, has in fact behaved in any way that calls into question the independence or objectivity of that office,” Eddington said. “If the DoJ IG finds evidence of criminality in any investigation it conducts into the Page FISA application affair, they are obligated to make a criminal referral back to DoJ. So Trump’s tantrum this morning is just another example of his cluelessness about investigative protocol at DoJ, and his contempt for due process generally.”
About the only thing Trump gets right in his tweet is that IG investigations can take a long time. Zaid explained that sometimes this is due to the complexity of the investigation, but more often than not, it has to do with resources.
“But Trump is in the perfect position to address this,” Zaid said. “He could ask Congress to allocate more money to the IG’s office.”
The specific IG report that Trump is complaining is late is Horowitz’s investigation into the FBI’s handling of its probe into Hillary Clinton’s use of a private email server, as well as related decisions made by former FBI Director James Comey during the 2016 election. The release of the report portends a political firestorm as both sides will likely seize on it to show why Trump was wrong or right to fire Comey, a decision that Special Counsel Robert Mueller is investigating. According to FBI Director Christopher Wray, the conclusions of the IG probe have already contributed to the early resignation of Deputy FBI Director Andrew McCabe, who Trump also attacked for being politically motivated against him.
This raises the question: Why is Trump attacking Horowitz now? Trump has certainly portrayed other institutions that are historically independent as partisan and untrustworthy: the intelligence community, the FBI, and even the Congressional Budget Office. This is usually because they have news that’s not going to be good for Trump or his policies. Could Trump’s attack on the IG be a preemptive attempt at shooting the messenger? Maybe. Or, it could just as likely be a poorly thought-out, impulsive, political smear against someone who’s annoying him in the moment. With Trump, you never know.