President Trump’s latest tweet tirade at his own attorney general, Jeff Sessions, hits the trifecta. The president appears unaware that internal investigations are legally required if Justice Department officials are accused of misconduct. By blatantly politicizing the investigation of FISA abuse, he makes the investigation more challenging to conduct. And he is making it increasingly difficult to recruit, confirm, and retain quality appointees at the Justice Department and elsewhere in his administration.
Trump inveighed against Sessions for asking the Justice Department’s inspector general “to investigate potentially massive FISA abuse,” calling the move “DISGRACEFUL!” He groused that the inspector general, Michael Horowitz, is “an Obama guy” who is “already late” in filing an anticipated report on actions taken by former FBI director James Comey during Clinton emails investigation. Yet another IG investigation would “take forever” and not result in prosecution, Trump added, so “why not use Justice Department lawyers” to do the investigation?
The president has a point in urging an investigation by Justice Department prosecutors, although nothing justifies his blunderbuss tweet and ongoing campaign of humiliation against Jeff Sessions.
The background here is obviously the House Intelligence Committee and the Senate Judiciary Committee investigations of possible abuse of the government’s national-security surveillance powers under FISA — the 1978 Foreign Intelligence Surveillance Act. The Nunes memo and the less famous but just as important Grassley-Graham memo allege that top FBI and Justice Department officials presented suspect evidence and failed in their duty of candor to the tribunal. If so, that would be egregious misconduct, though not necessarily, or even likely, a prosecutable violation of the criminal law.
These developments prompted Attorney General Sessions to announce on Tuesday that he had asked Inspector General Horowitz to investigate the conduct of FBI and Justice Department officials in the FISA court proceedings. Sessions was clearly demonstrating that he takes the allegations seriously, which means having them investigated in accordance with the rules. When there are allegations of wrongdoing by Justice Department or FBI officials, federal law and Justice Department protocols require an internal investigation by the units that exist for that purpose — the Office of the Inspector General or the Office of Professional Responsibility.
Sessions was correct to comply with these standards. Arguably, a referral to OPR, rather than the IG, may be warranted. Under federal law, OPR has jurisdiction over allegations of misconduct involving “the exercise of authority to investigate, litigate, or provide legal advice.” There is no doubt, though, that evidence of official malfeasance must be referred to one of these offices. Given that OPR reports directly to the attorney general, while the IG reports to both the attorney general and Congress, Sessions may well have calculated that the IG referral would have more credibility.
Horowitz, the inspector general, has earned a reputation for probity and fact-driven independence. Although he was appointed to the post by President Obama, he is a career prosecutor who has been assigned to high-level positions by administrations of both parties, and he has won the respect of congressional Republicans — some of whom rushed to his defense after Trump’s outburst.
As for his report on Comey, it is not late. It is said to be imminent and was always expected to be filed in the March–April time frame. Now, even if the report turns out to be scrupulously fair and critical of the FBI’s performance, Trump has ensured that his detractors, and perhaps the subjects of the investigation, will claim it was influenced by political pressure from the White House.
The same is true of the investigation of FISA abuse. We have urged that the attorney general appoint a strong United States attorney from a district outside Washington to conduct a full-blown probe of the investigations that became intertwined in the politics of the 2016 election. The probe would examine whether the Clinton emails and Trump-Russia investigations were conducted evenhandedly, whether decision-making was driven by partisanship rather than evidence, and whether not only Justice Department protocols but criminal laws were broken — including the laws against leaking classified information. But such a probe will be discredited from the start if it is politicized, or perceived as such.
Meanwhile, with vital Justice Department leadership positions already unfilled, the Department’s No. 3 official has just resigned after less than a year in office. With a razor-thin majority in the Senate after Republicans managed to lose the Alabama seat Sessions held for two decades, it has become a difficult feat to confirm Trump nominees. Is now really the moment for the president to be trying to drive his attorney general out the door?
If the president does not want “Obama guys” running the Justice Department, he has a strange way of showing it.