The U.S. Justice Department says Deputy Attorney General Rod Rosenstein has no immediate plans to recuse himself from overseeing the special counsel’s investigation into Russian influence, though he reportedly told colleagues he may need to take that step.
Anonymous sources tell ABC News and the Washington Post that Rosenstein has acknowledged in private conversations that he may have to step away from supervising the investigation by special counsel Robert Mueller. ABC was the first to report the news.
But Justice Department spokesman Ian Prior issued a statement on Friday saying Rosenstein remains in a supervisory role, at this point. "As the deputy attorney general has said numerous times, if there comes a point when he needs to recuse, he will," Prior said. "However, nothing has changed."
Rosenstein could be a witness in the investigation he is overseeing if Mueller has expanded his probe of Russian influence to investigate whether Trump obstructed justice by firing FBI director James Comey. Mueller may want to learn about Trump’s conversations with Rosenstein, the Justice Department official who wrote the memo criticizing Comey’s performance before his firing on May 9.
Trump appeared to confirm he was being investigated for obstruction in a tweet on Friday that read: "I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director! Witch Hunt."
Harvard law professor Noah Feldman argues in a Bloomberg View article that Trump’s tweet could force Rosenstein’s recusal because of his suggestion that Comey’s firing was Rosenstein’s idea. That would leave supervision of the Mueller probe to Associate Attorney General Rachel Brand, a a Harvard law graduate who clerked for Justice Anthony M. Kennedy and ran the Office of Legal Policy at the Justice Department.
Brand is "a horse of a different color from career prosecutors such as Rosenstein, Comey and Mueller," Feldman says. He speculates that her attitude may be "more informed by the structure of presidential authority and less by unwritten norms of prosecutorial independence."
According to the ABC report, Rosenstein discussed his potential recusal with Brand and told her she would have to take over his role if he did so. Read more
Special Counsel Robert Mueller will be interviewing three leading intelligence officials soon, with indications that he is scrutinizing possible obstruction of justice by President Donald Trump, the Washington Post reported Wednesday.
Mueller’s office has reached out to Director of National Intelligence Daniel Coats, National Security Agency Director Adm. Mike Rogers and recently retired deputy NSA director Richard Ledgett. Earlier this week, news reports indicated that Trump was thinking about firing Mueller but was dissuaded by staff.
Mueller is taking up an obstruction of justice probe of Trump that began at the FBI soon after Comey was fired on May 9, anonymous sources told the Post.
In congressional testimony last week, Comey said Trump had told him he hoped the FBI could let go of the investigation of former national security adviser Michael Flynn. Comey said he understood the president to be requesting that the FBI drop any investigation into alleged false statements Flynn made about his conversations with Russians.
According to the Post’s sources, Trump spoke to Coats and Rogers about the Russia investigation the next month. In a March 22 meeting, Trump reportedly asked whether Coats could ask Comey to back off the FBI’s focus on Flynn. Coats has said he didn’t feel pressured to do so, however.
A day or two later, Trump reportedly asked Coats and Rogers to publicly state there was no evidence of coordination between his campaign and the Russian government. The two officials did not agree to the request.
Ledgett wrote an internal memo about Trump’s phone call to Rogers, officials told the Post.
Trump took to Twitter Thursday morning to slam the report.
They made up a phony collusion with the Russians story, found zero proof, so now they go for obstruction of justice on the phony story. Nice — Donald J. Trump (@realDonaldTrump)June 15, 2017
You are witnessing the single greatest WITCH HUNT in American political history - led by some very bad and conflicted people!#MAGA
— Donald J. Trump (@realDonaldTrump) June 15, 2017
The White House could assert executive privilege to prevent those officials from being questioned about conversations with the president, which could lead to battles in court, where judges have tended to hold that criminal investigations can override such privilege, the New York Times reports. Read more
Debra Cassens Weiss contributed to this article.
Updated at 1:55 p.m. to include more information from the Post article. Updated at 2:12 p.m. to add contributing tagline.
President Donald Trump’s personal lawyer is targeting fired FBI director James Comey over his revelation on Thursday that he gave a memo summarizing a meeting with the president to a friend so he could give it the press.
Trump lawyer Marc Kasowitz will reportedly file a complaint over the leaked memo, report NBC News, CNN, Fox News and Reuters. The stories are based on an anonymous source. According to Reuters, Kasowitz will file a complaint with the Justice Department’s inspector general and will make a "submission" to the Senate Judiciary and Senate Intelligence committees.
But the memo leak does not appear to be illegal or to violate executive privilege, according to University of Texas law professor Steve Vladeck in a Washington Post article. Other experts interviewed by the Los Angeles Times and ABC News agree with that view.
CNN also points out that the Justice Department has limited jurisdiction over former employees. If the department finds wrongdoing it can make a note in Comey’s file to be used if he seeks employment there in the future.
Comey told the Senate Intelligence Committee that he gave a memo summarizing one of his meetings with Trump to a law professor and asked him to give it to a reporter. Comey said he wanted the memo released "because I thought that might prompt the appointment of a special counsel."
Comey leaked the memo after his May 9 firing and after a Trump tweet three days later that read, "James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!" Comey said the tweet led him to believe he needed to get the information out in the "public square."
A story later appeared in the New York Times, based on a Comey memo, about Trump allegedly telling Comey he hoped he could let go of the investigation into former national security adviser Michael Flynn’s contacts with Russian officials.
Kasowitz said in a statement released after Comey’s testimony that Comey had "unilaterally and surreptitiously made unauthorized disclosures to the press of privileged communications with the president." Kasowitz said the New York Times had been quoting from Comey’s memos while he was still FBI director. He also said that Comey admitted giving to his friends the memos of conversations, one of which was classified.
But Comey said he gave one memo to the law professor—apparently the one about the Flynn conversation—and he was careful not to put any classified information into the memo, Slate points out.
"I remember thinking, ‘This is a very disturbing development,’" Comey had testified. "If I write it in such a way that I don’t include anything that would trigger classification, that would make it easier for us to discuss within the FBI and the government and to hold on to it in a way that makes it accessible to us."
In his Washington Post piece, Vladeck says Comey’s memo isn’t covered by executive privilege and, even if it were, disclosing it without authorization isn’t illegal.
Executive privilege serves to protect against compelled disclosure of confidential executive branch communications, and it is meant to shield against a court order or congressional subpoena, he says.
The privilege "is not a sword, though," Vladeck writes. "So where a current or former government employee wants to cooperate and turn over the requested information, the privilege itself won’t—and can’t—stop him or her."
And voluntary disclosure is not illegal, Vladeck says. Federal law bars unauthorized disclosure relating to national defense or that has pecuniary value to the United States, and neither applies when information in the memo is unclassified.
Vladeck adds that Trump "has almost certainly waived any potential privilege claim" by acknowledging the existence and substance of the discussions. And if the privilege weren’t waived, any interest in confidentiality can be outweighed by the value of disclosure when it has some bearing on criminal cases.
And that means Trump likely could not successfully claim executive privilege to avoid releasing tapes of the conversations, if he has any, Vladeck says.
Though Comey’s disclosure of unclassified information isn’t illegal, that doesn’t mean it is appropriate, Vladeck says.
"Not for the first time, it appears that Comey took it upon himself to breach important norms governing the conduct of senior law enforcement officials—an offense that, perhaps ironically, would have unquestionably justified his termination, if he hadn’t already been fired before doing it," he writes. Read more
Missing word added to third paragraph at 12:20 p.m.
The Senate Judiciary Committee will investigate the circumstances of President Donald Trump’s firing of FBI director James Comey as it probes attempts to influence the agency’s investigations over the course of two administrations.
Chairman Charles Grassley, R-Iowa, revealed the committee’s plans in a letter (PDF) released Wednesday, the Wall Street Journal (sub. req.) reports.
The probe "could examine the thorny question of whether Mr. Trump improperly interfered in an ongoing investigation" by firing Comey, according to the newspaper. The Hill and the Washington Examiner also have stories.
Grassley’s letter was in response to a request by U.S. Sen. Dianne Feinstein of California, also the top Democrat on the committee. Feinstein has asked the committee to investigate Trump’s interactions with Comey. In a television interview, she also said the committee should investigate actions by former U.S. Attorney General Loretta Lynch in the FBI investigation of Hillary Clinton’s use of a private email server.
Grassley said Comey’s firing and Lynch’s actions should both be investigated.
"The Judiciary Committee has an obligation to fully investigate any alleged improper partisan interference in law enforcement investigations," Grassley wrote. "It is my view that fully investigating the facts, circumstances, and rationale for Mr. Comey’s removal will provide us the opportunity to do that on a cooperative, bipartisan basis."
Comey had said in testimony before the Senate Intelligence Committee last Thursday that Lynch directed him to refer to the agency’s probe of Clinton’s server as "a matter" rather than an investigation. Grassley also cited congressional testimony indicating that Comey appeared to question the whether leadership of the Justice Department had, in Grassley’s words, "independence from political motivations."
In a tweet on Tuesday, Trump said Lynch gave Hillary Clinton "a free pass" and "made law enforcement decisions for political purposes."
Grassley said investigations of Comey’s firing and Lynch’s actions should be intertwined because Trump had initially cited Comey’s handling of the Clinton probe as one reason for his firing. Read online
Corrected: Former FBI director James Comey told the Senate Intelligence Committee on Thursday that he took steps to get his version of a meeting with the president to the news media, believing that doing so might trigger the appointment of a special counsel.
Comey said he wrote memos summarizing his interactions with President Donald Trump because he feared Trump would lie about the nature of the meetings.
In those meetings, Trump asked Comey for loyalty and said he hoped Comey could let go of the investigation into former national security adviser Michael Flynn’s contacts with Russia, Comey said in prepared testimony for the committee.
After his firing, Comey leaked one of those memos to a Columbia law professor and asked him to share its contents with a reporter, Comey said. Daniel Richman confirmed he was the professor in an email to the Wall Street Journal.
A New York Times story about Trump’s Flynn request, based on the memo, appeared May 16, the New York Times reports.
Comey leaked the memo after his May 9 firing. The Washington Post says Comey’s revelation about his desire for a special counsel was "a remarkable admission showing the degree of concern he had about both Russian interference with U.S. politics, and his doubts about the Justice Department’s ability to probe such activity."
Comey implied in his testimony that any tapes of his conversations with Trump would verify his version of events. "I’ve seen the tweet about tapes. Lordy, I hope there are tapes," he said.
Comey was referring to a May 12 tweet by Trump that said, "James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!" Trump tweeted after a New York Times report that Trump had asked Comey to pledge his loyalty to the president.
After the president tweeted, Comey said, he decided he needed to get the information out in the public square. He asked the law professor to share contents of the memo with a reporter "because I thought that might prompt the appointment of a special counsel," Comey said, according to a "rushed transcript" by the FiveThirtyEight blog.
In his initial statement to the committee, Comey defended the FBI and his leadership of the bureau. Comey said he was confused and concerned about shifting explanations given for his firing.
The Trump administration, he said, chose to defame him and the FBI by asserting the organization was in disarray and the workforce had lost confidence in its leader. "Those were lies, plain and simple," Comey said.
"The FBI is honest, the FBI is strong. And the FBI is and always will be independent," Comey said.
Comey said President Donald Trump gave another explanation for his firing when he told a reporter he was thinking of the "Russia thing" at the time; Comey said he took the president at his word. "It’s my judgment that I was fired because of the Russia investigation," Comey testified. The Associated Press emphasized Comey’s assertion in its coverage.
"I was fired in some way to change, or the endeavor was to change, the way the Russia investigation was being conducted," Comey said.
But when asked if Trump had sought to stop his investigation into Russian interference with the election, Comey said, "Not to my understanding, no."
In his prepared testimony, Comey said Trump told him at a private dinner in January that wanted loyalty from him. "I need loyalty, I expect loyalty," Trump reportedly said.
Comey also said Trump told him during another meeting that Flynn hadn’t done anything wrong in calls with the Russians. "He is a good guy and has been through a lot," Trump reportedly said. "I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go. Read more
Fired FBI director James Comey said in prepared congressional remarks that President Donald Trump told him "I need loyalty, I expect loyalty" during a private dinner in January.
Trump told Comey during another meeting at the Oval Office in February that former National Security Adviser Michael Flynn hadn’t done anything wrong in calls with the Russians, according to Comey’s remarks.
The Washington Post has a report and a link to the testimony (PDF), prepared for the Senate Select Committee on Intelligence.
Comey said in the remarks that he expected other people to be present at the Jan. 27 dinner, but he and Trump were alone. Comey said he was uncomfortable, even before Trump asked for loyalty, so he told the president he was not "reliable" in the way politicians use the word. But he could always be counted on to tell the truth.
When the president said he needed loyalty, "I didn’t move, speak or change my facial expression in any way during the awkward silence that followed. We simply looked at each other in silence," Comey said.
At one point, Comey’s testimony said, he explained why it was important that the FBI and Department of Justice be independent of the White House. But the president raised the loyalty issue again near the end of the dinner, saying "I need loyalty," according to the prepared remarks.
Comey said he replied, "You will always get honesty from me." Trump responded, "That’s what I want, honest loyalty."
The Oval Office meeting occurred on Feb. 14 after a counterterrorism briefing, Comey said in the remarks. Trump said he wanted to speak to Comey alone. Attorney General Jeff Sessions and adviser Jared Kushner lingered, Comey said, but the president said he wanted to speak only to Comey.
Trump said Flynn had done nothing wrong by speaking to the Russians. But Trump had to let him go because he misled the vice president. "He is a good guy and has been through a lot," Trump reportedly said. "I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go."
Comey said he replied only that Flynn "is a good guy."
Comey said he understood the president to be requesting that the FBI drop any investigation into alleged false statements Flynn made about his conversations with the Russians. "I did not understand the president to be talking about the broader investigation into Russia or possible links to his campaign," Comey said.
In a March 30 phone call, Trump told Comey that the Russia probe was a "cloud" hanging over his ability to lead the country, according to Comey’s account. Trump reportedly said he had nothing to do with Russia and had not been involved with hookers there. Trump reportedly said it would be good to find out if "satellite" associates of his had done something wrong. But he hadn’t done anything wrong, and he hoped Comey could get out that information.
"I responded that we were investigating the matter as quickly as we could," Comey said, "and that there would be great benefit, if we didn’t find anything, to our having done the work well. He agreed, but then re-emphasized the problems this was causing him."
Trump finished the conversation by stressing that the cloud was interfering with his ability to make deals for the country, and he hoped Comey could find a way to let people know he wasn’t being investigated. "I told him I would see what we could do, and that we would do our investigative work well and as quickly as we could," Comey said.
Comey said he first assured Trump he was not under investigation during a Jan. 6 briefing. Trump raised the issue at the January dinner and said he was considering ordering Comey to investigate salacious, unverified allegations involving Trump and Russia to prove the incident didn’t happen, according to Comey.
Comey said he replied that the idea should be given careful thought because it might create a narrative that the FBI was investigating the president personally, which it wasn’t, and because it is difficult to prove a negative. Read online
ABA Journal Daily News By Debra Cassens Weiss Posted Oct 31, 2016 09:12 am CDT
FBI director James Comey’s disclosure on Friday that the bureau will investigate a Clinton aide’s emails has politicians and experts considering whether any laws were broken or whether any rights were violated.
Senate Minority Leader Harry Reid, D-Nevada, said in a letter on Sunday that Comey’s disclosure 11 days before the election may have violated the Hatch Act, which restricts political activities of government workers, the Washington Post reports. And the Volokh Conspiracy’s Orin Kerr, a law professor at George Washington University, says it’s possible the new investigation will be found to violate the Fourth Amendment.
Comey disclosed on Friday that the bureau was investigating new emails that may be relevant to its probe of Hillary Clinton’s use of a private email server. The emails were discovered on the computer of Anthony Weiner, who was under investigation for allegedly sexting a 15-year-old girl. His wife. Huma Abedin, is a top aide to Clinton.
The FBI has obtained a search warrant, unnamed law enforcement officials told the New York Times on Sunday. Weiner’s laptop was seized on Oct. 3, and FBI agents soon learned that Abedin’s emails were on the computer. At that point, agents were told to search the metadata to see if any emails were relevant to the Clinton investigation, according to the Times. Authorities decided to seek a search warrant late last week.
University of Minnesota law professor Richard Painter, a former White House ethics lawyer, sees some merit in Reid’s argument. In a New York Times op-ed, he said he filed a complaint on Saturday with the Office of Special Counsel, which investigates Hatch Act violations, and with the Office of Government Ethics.
"The FBI’s job is to investigate, not to influence the outcome of an election," he wrote.
Painter says a government official doesn’t have to have a specific intent to influence an election to violate the Hatch Act. "The rules are violated if it is obvious that the official’s actions could influence the election, there is no other good reason for taking those actions, and the official is acting under pressure from persons who obviously do want to influence the election," he wrote.
Painter says he is supporting Clinton in the election, though he previously supported Jeb Bush, Marco Rubio and John Kasich.
Kerr of the Volokh Conspiracy, meanwhile, considers case law on the Fourth Amendment and the facts that were known as of Oct. 30, when the blog post was written.
Kerr says he assumes the FBI obtained a warrant to search Weiner’s computer, as is required absent special circumstances. The search warrant presumably authorized a search relating relating only to Weiner’s communications with underage girls, Kerr says.
The first issue, he says, is whether the FBI was permitted to search through Abedin’s email account for records of Weiner’s improper messages to underage girls. He notes a Colorado Supreme Court case—which he has criticized—that dealt with officers who had a warrant to search for texts between a suspect and an undercover officer posing as an underage girl. The court found a search of a different folder that contained texts to a real underage girl violated the Fourth Amendment.
There might be similar problems in Clinton’s case because Weiner’s alleged texting crimes occurred in 2016. Hillary Clinton was secretary of state from 2009 to 2013. "If I’m right that there was a several-year gap between the warrant crime and the second investigation, it’s not clear the government could search through older emails for evidence of such a recent crime," Kerr writes.
A second issue is whether the FBI could seize the Abedin emails because they were outside the scope of the warrant, Kerr says. The "plain view" exception allows a law enforcement official who is searching a computer to obtain a second warrant to search for items in plain view that are evidence of a second crime. That standard may not be satisfied in the Clinton case, Kerr says.
"The plain view exception does not allow evidence to be seized outside a warrant unless it is ‘immediately apparent’ upon viewing it that it is evidence of another crime. Just looking quickly at the new evidence, there needs to be probable cause that it is evidence of a second crime to justify its seizure, which would presumably be necessary to apply for the second warrant," Kerr writes.
"The Fourth Amendment plain view standard doesn’t allow a seizure of emails based on a mere we-hope-to-later-determine standard. The government can’t seize the emails just because the Clinton investigation is extra important and any possible evidence is worth considering."
Kerr adds that the scope of the plain view doctrine with regards to computer searches "is very much in flux."
He also said he wanted "to flag the question of whose rights are at issue." If the FBI violated the Fourth Amendment, the only Clinton person who could move to suppress any evidence of crimes would be Abedin.
ABA Journal Daily News By Debra Cassens Weiss Posted Oct 28, 2016 12:42 pm CDT
Updated: FBI director James Comey told Congress on Friday that the FBI will investigate new emails that appear to be relevant to its once-closed probe of Hillary Clinton’s use of a private email server.
Comey said in a letter that the FBI learned of the existence of the emails in connection with an unrelated case, report the Washington Post and the New York Times.
According to the New York Times, unnamed officials told the newspaper that the new emails were discovered after the FBI seized electronic devices belong to Anthony Weiner and his wife, Huma Abedin, a top aide to Clinton. Weiner was under investigation for allegedly sexting a 15-year-old girl, the Associated Press reported in September.
The FBI "will take appropriate investigative steps designed to allow investigators to review these emails to determine whether they contain classified information, as well as to assess their importance to our investigation," Comey wrote.
Comey said he couldn’t predict how long it would take to complete the additional work and couldn’t assess at this time whether the new material may be significant.
The Washington Post calls Comey’s disclosure an "explosive announcement" that could shape the final days of the presidential campaign.
The FBI closed the Clinton email investigation in July with a recommendation that Clinton not be charged. Comey said at the time that Clinton and her staff were "extremely careless" in handling data, but "no reasonable prosecutor" would bring a case over the emails. Attorney General Loretta Lynch accepted the FBI recommendation.
In past cases involving the mishandling of classified information, Comey said in July, prosecutions "involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here."
Updated at 3:45 p.m. to note that the New York Times’s report that
the emails were uncovered after the seizure of Huma Abedin’s electronic
devices is based on information from unnamed officials.
