March 19, 2018 The Honorable Michael E. Horowitz: Office of the Inspector General U.S. Department of Justice 950 Pennsylvania Avenue NW, Suite 4706 Washington, DC 20530 Dear Inspector General Horowitz: American Oversight requests that the Department of Justice Inspector General immediately open an investigation into Attorney General Jeff Sessions’s repeated involvement in matters from which he must recuse himself under Department of Justice regulations. Despite purporting to recuse himself from “any existing or future investigation of any matter relating in any way to the campaigns for president of the United States,” media reports indicate that Mr. Sessions has repeatedly participated in decisions regarding the investigation of matters related to the 2016 presidential campaign. This pattern of disregard by Mr. Sessions for his ethical obligations merits immediate and thorough investigation by your office. Attorney General Sessions’s Recusal On March 2, 2017, Mr. Sessions announced that he was recusing himself “from any existing or future investigations of any matters related in any way to the campaigns for President of the United States.” This recusal is required by statute and expressly mandated by Department of Justice regulations, see 28 CFR § 45.2, and was not taken at Mr. Sessions’s discretion. Notwithstanding this clear black-letter legal requirement, the president has expressed disappointment with Mr. Sessions for recusing himself, and reportedly has contemplated removing Mr. Sessions in light of his decision to recuse. Media reports also portray a troubling campaign by White House officials 1 2 3 1 Press Release, U.S. Dep’t of Justice, Attorney General Sessions Statement on Recusal (Mar. 2, 2017), https://www.justice.gov/opa/pr/attorney-general-sessions-statement-recusal. See Peter Baker et al., Citing Recusal, Trump Says He Wouldn’t Have Hired Sessions, N.Y. TIMES, July 17, 2017, https://www.nytimes.com/2017/07/19/us/politics/trump-interview-sessionsrussia.html. See, e.g., Aaron Blake, Trump’s War Against His Own Attorney General, and 4 Possible Reasons for It, WASH. POST, July 25, 2017, https://www.washingtonpost.com/news/thefix/wp/2017/07/25/4-possible-reasons-for-trumps-war-against-his-own-attorneygeneral/?utm_term=.05fa1d94d10e; Kevin Johnson, After President Trump’s Public Attacks, Can Jeff Sessions Survive as Attorney General?, USA TODAY, July 24, 2017, https://www.usatoday.com/story/news/politics/2017/07/24/can-jeff-sessions-survive-attorney-generalafter-trump-attacks/504823001/. 2 3 1030 15th Street NW, Suite B255, Washington, DC 20005 AmericanOversight.org 4 to persuade Mr. Sessions to violate this clear legal obligation. This disturbing effort to subvert the rule of law created tremendous pressure on Mr. Sessions to curry favor and skirt his ethical obligation to avoid participation in matters related to the 2016 presidential campaign. Attorney General Sessions’s Failure to Recuse from the Firing of FBI Director James Comey On May 9, 2017, the president fired FBI Director James Comey. Media reports indicate that Mr. Sessions personally and substantially participated in advising the president regarding Mr. Comey’s removal. The White House initially proffered as reason for Mr. Comey’s removal a memorandum by Deputy Attorney General Rod Rosenstein that found Mr. Comey had violated Department protocols in connection with investigations related to presidential candidate Hillary Clinton, to her detriment. Shortly thereafter the president acknowledged in a television interview that the reason for Mr. Comey’s removal was related to Mr. Comey’s efforts to further the investigation of Russia’s interference in the presidential election and connections between Russia and Donald Trump’s campaign for president. Subsequent media reports indicate that prior to Mr. Comey’s removal, senior Department officials, including Mr. Sessions, participated in meetings and reviewed a draft removal letter to Mr. Comey in which it was made clear that the conduct of the Russia investigation played a central role in the decision to remove Mr. Comey. 5 6 7 Whether one accepts the pretext that Mr. Comey was removed because of Mr. Comey’s improper public statements and actions regarding the Clinton investigation in violation of Department policy, or one acknowledges the reality that Mr. Comey was terminated for pursuing the Russia investigation, it is undoubtedly the case that every proffered reason for Mr. Comey’s removal relates to his conduct in investigations of matters “related in any way to the [2016] campaigns for President of the United States.” Consequently, under the terms of both DOJ regulations and See, e.g., Michael S. Schmidt, Obstruction Inquiry Shows Trump’s Struggle to Keep Grip on Russia Investigation, N.Y. TIMES, Jan. 4, 2018, https://www.nytimes.com/2018/01/04/us/politics/trump-sessions-russia-mcgahn.html; Brandon Carter, Trump Ordered WH Lawyer to Stop Sessions From Recusing Himself in Russia Probe: Report, THE HILL, Jan. 4, 2018, http://thehill.com/homenews/administration/367538-trumpordered-wh-lawyer-to-stop-sessions-from-recusing-himself-in. See, e.g., Charlie Savage, Deputy Attorney General’s Memo Breaks Down Case Against Comey, N.Y. TIMES, May 9, 2017, https://www.nytimes.com/2017/05/09/us/politics/comey-fbi-memo-rodrosenstein.html. See, e.g., James Griffiths, Trump Says He Considered ‘This Russia Thing’ Before Firing FBI Director Comey, CNN (May 12, 2017, 9:11 AM), https://www.cnn.com/2017/05/12/politics/trump-comey-russia-thing/index.html. See, e.g., Michael S. Schmidt & Maggie Haberman, Mueller Has Early Draft of Trump Letter Giving Reasons for Firing Comey, N.Y. TIMES, Sept. 1, 2017, https://www.nytimes.com/2017/09/01/us/politics/trump-comey-firing-letter.html; Rosalind S. Helderman et al., Mueller Examining Trump’s Draft Letter Firing FBI Director Comey, WASH. POST, Sept. 1, 2017, https://www.washingtonpost.com/politics/mueller-examining-trumps-draftletter-firing-fbi-director-comey/2017/09/01/52c6cd8e-8f17-11e7-8df5c2e5cf46c1e2_story.html?utm_term=.19ae7105277b. 4 5 6 7 2 Mr. Sessions’s announced recusal, Mr. Sessions should have recused himself from participation in the decision to remove Mr. Comey. To be sure, Mr. Sessions’s recusal obligations regarding the presidential campaign did not require Mr. Sessions to avoid participation in all matters relating to the general supervision of the FBI director simply because Mr. Comey was involved in investigations from which Mr. Sessions was recused. However, once it became clear that the bases for which the president was considering removing Mr. Comey related directly to his conduct of investigations from which Mr. Sessions was expressly recused, Mr. Sessions should have immediately removed himself from those discussions. We request you undertake a full investigation of the extent to which Mr. Sessions continued to participate in matters related to Mr. Comey’s removal after it became clear that the decision rested in large part on how Mr. Comey conducted himself in matters from which Mr. Sessions was expressly recused. Attorney General Sessions’s Failure to Recuse from Investigations Relating to Former Presidential Candidate Secretary Hillary Clinton On November 13, 2017, Assistant Attorney General Stephen Boyd sent a letter to Representative Bob Goodlatte, chair of the House Judiciary Committee, indicating that Mr. Sessions had directed senior prosecutors to undertake a new review of a number of investigations relating to former presidential candidate Hillary Clinton, including the investigation into Ms. Clinton’s email server, investigations relating to the Clinton Foundation, and investigations relating to Ms. Clinton’s role in the review of the Uranium One transaction by the Committee on Foreign Investment in the United States. Media reports indicate that Mr. Sessions is considering appointing a new special prosecutor to investigate some or all of these matters. Subsequent reporting has indicated that the Department has renewed its investigation of at least some of these matters. And reports indicate 8 9 10 8 Letter from Stephen E. Boyd, Assistant Attorney General, U.S. Dep’t of Justice, Office of Legislative Affairs, to the Robert W. Goodlatte, Chairman, U.S. House of Representatives, Comm. on the Judiciary, Nov. 13, 2017, available at https://www.nytimes.com/interactive/2017/11/13/us/politics/document-Special-CounselDepartment-of-Justice.html (responding to letter regarding requesting the appointment of a special counsel to investigate the sale of Uranium One, alleged wrongful dealings related to the Clinton Foundation, and other matters relating to the Clintons, and stating that “the Attorney General has directed senior federal prosecutors to evaluate certain issues raised in your letters”). See, e.g., Matt Zapotosky, Sessions Considering Second Special Counsel to Investigate Republican Concerns, Letter Shows, WASH. POST, Nov. 13, 2017, https://www.washingtonpost.com/world/national-security/sessions-considering-second-specialcounsel-to-investigate-republican-concerns-letter-shows/2017/11/13/bc92ef3c-c8d2-11e7-b0cf7689a9f2d84e_story.html?utm_term=.7f815365c2f4. See, e.g., Bob Fredericks, DOJ Prepares New Probe of Clinton’s Email Server, N.Y. POST, Jan. 4, 2018, https://nypost.com/2018/01/04/doj-prepares-new-probe-of-clintons-email-server/; John Solomon, FBI Launches New Clinton Foundation Investigation, THE HILL, Jan. 4, 2018, http://thehill.com/homenews/campaign/367541-fbi-launches-new-clinton-foundation-investigation. 9 10 3 that Mr. Sessions has been directly involved in decisionmaking related to some of these investigations, such as permitting a confidential source to testify before Congress. 11 All of these investigations played a material role in the 2016 presidential campaign. Indeed, in his role as a surrogate for the presidential campaign of Donald Trump, Mr. Sessions’s himself made public comments regarding many of these issues. As required by Department ethics regulations, Mr. Sessions testified before the Senate that he would not participate in investigations relating to Ms. Clinton’s emails and the Clinton Foundation. 12 13 Nonetheless, notwithstanding his recusal from “any existing or future investigations of any matters related in any way to the [2016] campaigns for President of the United States” and his testimony before the Senate, both the Department’s own statements and media reports indicate that Mr. Sessions has improperly played a significant decisionmaking role, both in directing senior prosecutors to undertake a new review of these matters in response to political pressure from Republicans in Congress and in subsequent decisions regarding the conduct of renewed investigation into these matters relating to the 2016 presidential campaign. Mr. Sessions’s participation in these matters—in direct violation of both Department ethics rules and his own stated recusal—raise significant questions about his conduct that warrant thorough and immediate investigation by your office. See, e.g., Cristiano Lima, Sessions Praises Lifting of Gag Order on FBI Informant in Uranium Probe, POLITICO (Oct, 27, 2017, 7:25 PM), https://www.politico.com/story/2017/10/27/jeffsessions-doj-gag-order-fbi-informant-uranium-244262. Dan Berman et al., Foundation Becomes Campaign Issue, CNN (Oct. 5, 2016, 4:59 PM), https://www.cnn.com/2016/08/22/politics/donald-trump-clinton-foundation-shut-down/index.html; Doina Chiacu & Roberta Rampton, Clinton Says Russia Behind DNC Hacking, Draws Line to Trump, REUTERS (July 31, 2016, 2:48 PM), https://www.reuters.com/article/us-usa-cyberdemocrats/clinton-says-russia-behind-dnc-hacking-draws-line-to-trump-idUSKCN10B0ST; Christian Datoc, ‘High Prosecution Case’ – Jeff Sessions Calls for Investigation of FBI for Handling of Clinton Probe, THE DAILY CALLER (Oct. 6, 2016, 5:22 PM), http://dailycaller.com/2016/10/06/high-prosecution-case-jeff-sessions-calls-for-investigation-of-fbifor-handling-of-clinton-probe/; Fox Business, Sen. Sessions on the FBI’s New Investigation of Clinton’s Email Case, YOUTUBE (Oct. 30, 2016), https://www.youtube.com/watch?v=vF20sjV8_FQ; Rudy Giuliani, Giuliani, Sessions, Keating, et al: Time for Loretta Lynch to Appoint a Special Counsel, FOX NEWS, Nov. 5, 2016, http://www.foxnews.com/opinion/2016/11/05/giuliani-sessions-keating-et-al-time-for-loretta-lynchto-appoint-special-counsel.html; Eugene Scott, Sen. Jeff Sessions: Clinton Foundation ‘Should Be Fully Investigated,’ CNN (Aug. 23, 2016, 9:43 AM), https://www.cnn.com/2016/08/23/politics/jeffsessions-clinton-foundation/index.html. See Senate Judiciary Committee Hearing on the Nomination of Sen. Sessions to be Attorney General (Jan. 10, 2017) (Chuck Grassley, Chairman, asks, “To be very clear, you intend to recuse yourself from both the Clinton email investigation and any matters involving the Clinton Foundation, if there are any?” and then-Senator Jeff Sessions responds, “Yes.”), available at https://www.thisweekinimmigration.com/uploads/6/9/2/2/69228175/hearingtranscript_senatejudicia rysessionsconfirmationhearing_2017-01-10.pdf. 11 12 13 4 Attorney General Sessions’s Participation in Matters Pertaining to the Special Counsel’s Investigation Mr. Sessions has publicly acknowledged his recusal from the Special Counsel’s investigation. Nonetheless, media reports suggest that Mr. Sessions has participated in a number of matters that directly pertain to the conduct of the investigation now being managed by the Office of the Special Counsel. Reports indicate that Mr. Sessions was directly involved in discussions regarding the declassification and release of the so-called Nunes Memorandum, which relates to a FISA warrant to surveille Carter Page in connection with the investigation of Russian interference in the election now being supervised by the Special Counsel. Reports indicated that Mr. Sessions engaged directly with White House Chief of Staff John Kelly regarding the release of information in the Nunes Memorandum. Mr. Sessions also reportedly has directed an investigation into alleged abuse or misconduct in connection with the application for the FISA warrant regarding Mr. Page. Of course, this FISA warrant arose in connection with the investigation into Russian interference in the presidential campaign from which Mr. Sessions purports to have recused himself, and any investigation into abuse in connection with the application for that FISA warrant would itself also be an “investigation into any matters related in any way to the [2016] campaigns for President of the United States” from which Mr. Sessions has announced his recusal. 14 15 16 Similarly, media accounts indicate that Mr. Sessions participated in decisionmaking regarding the disclosure of text messages between FBI agent Peter Strzok and FBI lawyer Lisa Page. Since DOJ’s disclosure of certain of the texts, Mr. Sessions has committed to further investigating the Strzok-Page exchanges. Of course, this issue too relates to the conduct of the investigation into 17 18 Ashley Parker et al., Trump Sought Release of Classified Russia Memo, Putting Him at Odds with Justice Department, WASH. POST, Jan. 27, 2018, https://www.washingtonpost.com/politics/trump-sought-release-of-classified-russia-memo-puttinghim-at-odds-with-justice-department/2018/01/27/a00f2a4c-02bb-11e8-9d31d72cf78dbeee_story.html?utm_term=.ad9f85435bcd. Id. See Chris Geidner & Dominic Holden, Donald Trump and Jeff Sessions Fight Over Investigation into FISA Abuse Claims, BUZZFEED (Feb. 28, 2018, 2:16 PM), https://www.buzzfeed.com/chrisgeidner/jeff-sessions-says-there-will-be-an-investigation-intofisa?utm_term=.cdq6VDwNV#.hvQ518PN1; Pema Levy, Trump’s Lawyer Really Wants Jeff Sessions to Appoint a Second Special Counsel to Investigate the FBI, MOTHER JONES (Mar. 8, 5:00 PM), https://www.motherjones.com/politics/2018/03/trumps-lawyer-really-wants-jeff-sessionsto-appoint-a-second-special-counsel-to-investigate-the-fbi/. Jennifer Jacobs, On Flight to Davos, Trump Erupted over DOJ Role in Russia Probe, BLOOMBERG (Jan. 29. 2018, 3:07 PM), https://www.bloomberg.com/news/articles/2018-01-29/onflight-to-davos-trump-erupted-over-doj-role-in-russia-probe. Sari Horowitz, Sessions Says ‘We Will Leave No Stone Unturned’ to Find Missing FBI Text Messages, WASH. POST, Jan. 22, 2018, https://www.washingtonpost.com/world/nationalsecurity/sessions-says-we-will-leave-no-stone-unturned-to-find-missing-fbi-textmessages/2018/01/22/2b319ffc-ffcd-11e7-9d31d72cf78dbeee_story.html?utm_term=.5437cf12a520. 14 15 16 17 18 5 Russian interference in the presidential campaign from which Mr. Sessions purports to have recused himself. Attorney General Sessions’s Failure to Recuse from the Firing of Former FBI Deputy Director Andrew McCabe On March 16, 2018, the Department of Justice announced that former Deputy Director Andrew McCabe had been fired, and issued a statement regarding the decision under Mr. Sessions’s name. Media reports likewise indicate that Mr. Sessions made the final decision regarding Mr. McCabe’s removal. Although the report of the Inspector General investigation that formed the basis for this decision has not yet been released, media reports indicate that the decision to fire Mr. McCabe rested in large part on his conduct and media interactions in connection with investigations into Ms. Clinton’s email server and the Clinton Foundation. To the extent that the alleged misconduct that formed the basis for Mr. McCabe’s termination involved the conduct of investigations related to the 2016 presidential campaign, Mr. Sessions should have been recused by the terms of both Department ethics regulations and his own statement of recusal. 19 20 In conversations with reporters, the Department has taken the position that Mr. Sessions’s recusal covers only the investigations themselves and not employee discipline or professional responsibility issues, even if they arise directly or solely from those investigations. This claim reflects a profound misunderstanding of the Department’s ethics rules and how actual or apparent conflicts of interest operate to undermine Department decisionmaking, and, if correct, would eviscerate the effectiveness of the Department’s ethics regime. If an official is recused from directing the conduct of an investigation because of actual or apparent conflicts of interest but can participate fully in undertaking disciplinary actions against employees for how they conduct that investigation, the purported recusal would be a chimera because every employee involved in the investigation would know that their conduct of the investigation would be subject to the review of the recused official, and that they would be subject to potential discipline by the official if he were displeased with their conduct. This is particularly so when the purportedly recused official is the Attorney General. This is a simple and self-evident proposition: if an official is “recused” from an investigation but can discipline or fire the investigators for how they conduct that investigation, the investigation, by definition, is not independent of the “recused” official. The troubling nature of these facts is all the more exacerbated by the context here. Mr. McCabe has been repeatedly attacked by name by the president himself, including insinuations that he should lose his pension. Mr. Sessions has faced tremendous pressure to curry favor with the president to reinforce his tenuous position with him. Moreover, Mr. McCabe is reportedly a key witness in the Special Counsel’s investigation into whether the president obstructed justice. Whatever the merits of the disciplinary case against Mr. McCabe, in this context the public can have absolutely no confidence that the decision to fire Mr. McCabe was made based on those merits rather than crass political considerations in light of Mr. Sessions’s central role in the See, e.g., Matt Apuzzo & Adam Goldman, Andrew McCabe, a Target of Trump’s F.B.I. Scorn, Is Fired Over Candor Questions, N.Y. TIMES, Mar. 16, 2018, https://www.nytimes.com/2018/03/16/us/politics/andrew-mccabe-fbi-fired.html. Id. 19 20 6 decision. This concern is compounded by the appearance that, whatever the merits of the substance of the criticisms of Mr. McCabe’s conduct, the speed and timing with which the decision was made is highly unusual and itself raises questions about the process. The appearance that the process and substance of the Department’s decisionmaking with respect to Mr. McCabe was unduly influenced by conflicts of interest and political considerations is precisely the problem that the Department’s ethics rules are designed to avoid by removing officials from participating in decisions where they have conflicting interests. Mr. Sessions’s insistence that he can continue to participate in this decision is detrimental to the Department’s credibility and integrity with the public at large, and constitutes a dereliction of his duties as Attorney General. His involvement in this matter merits a full investigation by your office. 21 21 Counsel for Mr. McCabe has said that the entire disciplinary process leading to his termination was completed in little more than a week; that he and Mr. McCabe first saw the final report regarding his alleged misconduct and supporting evidence only a week before the final decision; that they were only afforded four days to review a voluminous amount of relevant evidence, prepare a response, and make presentations to the Office of the Deputy Attorney General; and that they were still receiving relevant exculpatory evidence regarding Mr. McCabe’s conduct as little as two days before the final decision on Mr. McCabe’s termination. See Statement by Former IG Michael Bromwich, Counsel for Mr. McCabe (Mar. 16, 2018), available at http://www.bromwichgroup.com/wp-content/uploads/2018/03/Bromwich-statement.pdf. By way of comparison, former FBI Director William Sessions was removed in July 1993 only after having been afforded more than six months to review and respond to the 161 page report regarding his conduct issued by the Office of Professional Responsibility in January 1993. See David Johnston, Defiant F.B.I. Chief Removed from Job by the President, N.Y. TIMES, July, 20, 1993, https://www.nytimes.com/1993/07/20/us/defiant-fbi-chief-removed-from-job-by-the-president.html. Similarly, the Department issued its final views regarding the professional conduct of John Yoo and Jay Bybee in connection with the drafting of 2002 and 2003 Office of Legal Counsel opinions on enhanced interrogation techniques in January 2010 following a July 2004 request for investigation by a congressman and the initiation of an investigation by OPR in October 2004. See Memorandum for the Attorney General from David Margolis, Assoc. Deputy Attorney General (Jan. 5, 2010), available at http://graphics8.nytimes.com/packages/pdf/politics/20100220JUSTICE/20100220JUSTICEDAGMargolisMemo.pdf. Counsel for Messrs. Yoo and Bybee had sixty days to comment on a draft OPR report before it was finalized in July 2009, and then had a second opportunity to provide input to the senior career Department official responsible for the Department’s final views in October 2009 before the views were finalized in January 2010. See id.; Response to the U.S. Department of Justice Office of Professional Responsibility Final Report Dated July 29, 2009, Submitted on Behalf of Professor John C. Yoo (Oct. 9, 2009), available at http://graphics8.nytimes.com/packages/pdf/politics/20100220JUSTICE/20100220JUSTICEYooResponse.pdf; Classified Response to the U.S. Department of Justice Office of Professional Responsibility Classified Report Dated July 29, 2009, Submitted on Behalf of Judge Jay S. Bybee (Oct. 9, 2009), available at http://graphics8.nytimes.com/packages/pdf/politics/20100220JUSTICE/20100220JUSTICEBybeeResponse.pdf; see also Eric Lichtblau & Scott Shane, Report Faults 2 Authors of Bush Terror Memos, N.Y. TIMES, Feb. 19, 2010, http://www.nytimes.com/2010/02/20/us/politics/20justice.html. 7 Conclusion Each of these matters is a troubling instance of Mr. Sessions’s continued participation in matters where he has an actual or apparent conflict resulting from his covered political relationship with Donald Trump’s 2016 presidential campaign. Together, however, they suggest a disturbing pattern of disregard by the Attorney General for his core ethics obligations and draw into question several major steps taken by the Department in the past two years with significant political overtones. Only an immediate and thorough investigation of these apparent ethical transgressions and a public report detailing Mr. Sessions’s role in these major decisions in matters relating to the 2016 presidential campaign can begin to correct the appearance that the decisionmaking of the Department of Justice itself has been suborned by partisan politics in troubling ways. American Oversight is a non-partisan organization dedicated to accountability and ethics in government. No doubt we share that commitment with you. We urge you to investigate the serious ethical questions raised by Mr. Sessions’s involvement in the investigation of several matters related to the 2016 presidential campaign, including the firing of FBI Director James Comey, his participation in decisions regarding investigations of former presidential candidate Hillary Clinton, his involvement in matters pertaining to the Special Counsel’s investigation, and his role in the firing of former FBI Deputy Director Andrew McCabe. We look forward to your prompt response and the results of your inquiry into these matters. Sincerely, Austin R. Evers Executive Director American Oversight 8 cc: Robin C. Ashton Counsel U.S. Department of Justice Office of Professional Responsibility 950 Pennsylvania Avenue NW, Suite 3266 Washington, DC 20530 Cynthia K. Shaw Director U.S. Department of Justice Departmental Ethics Office 950 Pennsylvania Avenue NW, Room 1111 Washington, DC 20530 Senator Chuck Grassley Chairman Committee on the Judiciary U.S. Senate 224 Dirksen Senate Office Building Washington, DC 20510-6050 Senator Dianne Feinstein Ranking Member Committee on the Judiciary U.S. Senate 224 Dirksen Senate Office Building Washington, DC 20510-6050 Congressman Bob Goodlatte Chairman Judiciary Committee U.S. House of Representatives 2138 Rayburn House Office Building Washington, DC 20515 Congressman Jerry Nadler Ranking Member Judiciary Committee U.S. House of Representatives 2138 Rayburn House Office Building Washington, DC 20515 9