March 15, 2018

Grassley, Graham, Cornyn, Tillis Seek Special Counsel to Work with Inspector General on Handling of Russia Investigation

WASHINGTON – Senators Chuck Grassley (R-Iowa), Lindsey Graham (R-S.C.), John Cornyn (R-Texas) and Thom Tillis (R-N.C.) today are seeking the appointment of a special counsel to work with the Inspector General in reviewing how the Justice Department and FBI handled specific matters related to the Trump-Russia investigation up to the appointment of Special Counsel Robert Mueller.
 
“We have the utmost confidence in the Inspector General’s integrity, fairness, and impartiality, and trust that he will complete these reviews in a thorough, unbiased, and timely fashion,” the senators wrote in a letter to Justice Department leaders. “However, by statute, the Inspector General does not have the tools that a prosecutor would to gather all the facts, such as the ability to obtain testimony from essential witnesses who are not current DOJ employees. Thus, we believe that a special counsel is needed to work with the Inspector General to independently gather the facts and make prosecutorial decisions, if any are merited.”
 
On February 28, 2018, Grassley, chairman of the Senate Judiciary Committee, and Graham, chairman of the Judiciary Subcommittee on Crime and Terrorism, wrote to the Justice Department’s Office of Inspector General (OIG) requesting a broad review of more than 30 classified and unclassified questions related to the Trump-Russia probe. But because the Inspector General lacks access to grand jury process and other prosecutorial tools, a special counsel with such authority may be necessary to compel the production of testimony and information that would otherwise be unobtainable.
 
In their letter to the Attorney General and Deputy Attorney General, Grassley, Graham, Cornyn and Tillis outline the case for appointment of a special counsel to support an independent OIG investigation, and note that the appointment should occur under the specific Justice Department regulations that govern special counsels and limit the scope of their authority. The senators further request that if the Attorney General or Deputy Attorney General determines a special counsel is not appropriate or necessary, then the Department designate a U.S. Attorney’s office or other prosecutor with no real or apparent conflict to work with the Inspector General.
 
Full text of the senators’ letter to Sessions and Rosenstein follows. The attachments to their letter are:
 
March 15, 2018
 
VIA ELECTRONIC TRANSMISSION
 
The Honorable Jeff Sessions
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
 
The Honorable Rod J. Rosenstein
Deputy Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
 
Dear Attorney General Sessions and Deputy Attorney General Rosenstein:
 
As you know, the Department of Justice Inspector General currently is reviewing the Department’s and the Federal Bureau of Investigation’s handling of the Clinton email investigation.[1]  Recently, the Attorney General requested that he also review questions about the Department’s and the FBI’s actions in seeking a Foreign Intelligence Surveillance Act (FISA) warrant against former Trump Campaign advisor Carter Page.[2]  On February 28, based on reviews of related documents and facts gathered thus far in the Committee’s oversight work, Chairman Grassley and Chairman Graham also requested that the Inspector General broadly review more than 30 classified and unclassified questions related to the FBI and the Department’s handling of the so-called Trump/Russia investigation and related matters prior to the appointment of Special Counsel Robert Mueller.[3]  For reference, we have attached the unclassified portion of that referral. 
 
The January 4, 2018 referral of Christopher Steele requested that the Justice Department reconcile the statements he made in British libel litigation against him with contrary statements he reportedly made to the FBI, as described in the FISA application.  The referral took no position as to which were true, but asked the Justice Department whether Mr. Steele misrepresented the facts to the FBI and whether the FBI inaccurately reported the facts to the court.  Based on the release of the memorandum drafted by the minority staff of the House Permanent Select Committee on Intelligence, the FBI has now provided a further un-redacted version of that referral memorandum, also attached here.[4]  The new version provides the public for the first time the actual quote from the FISA application that we flagged for the Justice Department as inconsistent with claims made in the British libel litigation filings.
 
The attached request to the Inspector General asked that he investigate issues surrounding the application and renewals of the FISA warrant.  It also requested that he review potential improprieties in the FBI’s relationship with Christopher Steele, the potential conflicts of interest posed by the involvement of high-ranking DOJ official Bruce Ohr in serving as the cut-out between the FBI and Mr. Steele after the FBI terminated its formal relationship with him, apparent unauthorized disclosures of classified information to the press, the FBI and DOJ’s handling of the investigation of Lt. Gen. Michael Flynn, and other matters.
 
We have the utmost confidence in the Inspector General’s integrity, fairness, and impartiality, and trust that he will complete these reviews in a thorough, unbiased, and timely fashion.  However, by statute, the Inspector General does not have the tools that a prosecutor would to gather all the facts, such as the ability to obtain testimony from essential witnesses who are not current DOJ employees.  Thus, we believe that a special counsel is needed to work with the Inspector General to independently gather the facts and make prosecutorial decisions, if any are merited.  The Justice Department cannot credibly investigate itself without these enhanced measures of independence to ensure that the public can have confidence in the outcome.
 
To ensure that the appointment of a special counsel rests on a clear, well-defined predicate and scope, and to give the American people the fullest possible confidence in his or her independence and authority, we believe that the appointment should specifically cite, rely on, and follow the Department’s regulations governing such an appointment, including specifically 28 C.F.R. §§ 600.1-600.4.[5]
 
If you are unwilling to take this step, please send us a detailed reply explaining why not. We look forward to your response.
 
Sincerely,
 
                                              
 
Charles E. Grassley                                                     Lindsey O. Graham                            
Chairman                                                                     Chairman
Committee on the Judiciary                                      Subcommittee on Crime and Terrorism
 
John Cornyn                                                                Thom Tillis
U.S. Senator                                                                U.S. Senator
 
cc:        The Honorable Dianne Feinstein
            Ranking Member
            Committee on the Judiciary
 
            The Honorable Sheldon Whitehouse
            Ranking Member
            Subcommittee on Crime and Terrorism
 
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[1] Press Release, Office of the Inspector General, U.S. Dep’t of Justice, DOJ OIG Announces Initiation of Review (Jan. 12, 2017).
[2] Kelly Cohen, Jeff Sessions responds to Nunes memo release: 'No department is perfect', Washington Examiner (Feb. 2, 2018); Josh Gerstein, Sessions: Justice Department watchdog investigating GOP Russia memo claims, Politico (Feb. 27, 2018).
[3] Letter from Charles E. Grassley, Chairman, U.S. Sen. Comm. on the Judiciary and Lindsey O. Graham, Chairman, Subcomm. on Crime and Terrorism, U.S. Sen. Comm. on the Judiciary to Michael Horowitz, Inspector General, U.S. Dep’t of Justice (Feb. 28, 2018) (Unclassified Letter attached as Exhibit 1).
[4] Memorandum from Charles E. Grassley, Chairman, U.S. Sen. Comm. on the Judiciary and Lindsey O. Graham, Chairman, Subcomm. on Crime and Terrorism, U.S. Sen. Comm. on the Judiciary to Rod J. Rosenstein, Deputy Attorney General, U.S. Dep’t of Justice and Christopher A. Wray, Director, Federal Bureau of Investigation (Jan. 4, 2018) (Exhibit 2).
[5] See 28 C.F.R. § 600 et seq.; If you determine that a special counsel appointment would not be necessary or appropriate under the Department’s regulations, we urge you to designate a disinterested U.S. Attorney or other Justice Department prosecutor with no actual or apparent conflicts to work cooperatively with the Inspector General in his review and ensure that he has access to grand jury process and other prosecutorial tools necessary to guarantee a thorough, complete, and independent review in which the public can have total confidence.