The Justice Department is engaged in subterfuge to conceal its focus on the former president.
The Justice Department is engaged in subterfuge to conceal its focus on the former president.
I n the last week, the Biden Justice Department has taken aggressive investigative actions against former Trump administration officials and advisers. What is going on could not be more obvious: Egged on by the House January 6 committee and progressive Democrats who want former president Donald Trump to be criminally charged in connection with the Capitol riot, the department has obtained search warrants to raid the home of former Trump Justice Department official Jeffrey Clark and seize the cellphone of John Eastman, one of Trump’s private lawyers.
The Justice Department does not want to say that Trump — Biden’s political rival — is the target of a criminal investigation, particularly after House Democrats impeached Trump for encouraging Ukraine to investigate Biden. So the DOJ’s pretext is that these searches are merely part of an internal inspector-general probe of Clark. Yet Clark has not worked at the Justice Department for over a year. And as for Eastman, who was never a DOJ employee at all, well: Are we really to believe that the DOJ went to the trouble of applying to a court for authorization to confiscate his phone as part of its IG’s scrutiny of Clark, rather than as part of a criminal investigation of Eastman himself and Trump?
Yeah, sure.
Understand: The Justice Department knows that Clark and Eastman are represented by counsel. It could easily have issued grand-jury subpoenas for Clark and Eastman and delivered those subpoenas to their lawyers, with instructions that whatever materials were sought be promptly surrendered to the FBI. That would be the normal procedure when government lawyers are dealing with investigative subjects who are not suspected of violent crimes and have alerted the government that they have attorneys. Here, instead, the Justice Department went covertly to federal judges — in this case, the DOJ would have been able to forum-shop, since it knew when each of those judges would be on search-warrant duty — and obtained warrants that enabled federal agents to rifle through the belongings of these Trump associates, only after subjecting them to the humiliation of temporary arrest and frisk, without notifying their lawyers.
So, what is legally necessary for a search warrant to be authorized by a federal judge?
The Justice Department or one of its investigative agencies, typically the FBI, must provide the court with a sworn application showing probable cause to believe that a serious violation of federal law has occurred and that evidence of that crime is likely to be found in the place or on the person targeted in the search warrant.
That being the case, upon learning of the Clark and Eastman search warrants, I was initially prepared to title this piece “The Justice Department Will Soon Indict Donald Trump.” Why? Because if the Justice Department and the FBI were telling federal judges that there was probable cause to believe Clark and Eastman had committed crimes, this had to be related to their collaboration with then-president Trump in the scheme to reverse the result of the 2020 election — not coincidentally, the subject of the House January 6 committee’s sessions last week. (The Justice Department is leveraging the committee’s probe to boost its investigation, while the committee is pressuring the Justice Department to charge Trump with a crime.)
As you can see, that is not the title of this post. Why not? Because the Justice Department is engaged in subterfuge to conceal that Trump is the target of its criminal investigation.
Significant criminal investigations are generally carried out by the FBI under the supervision of the U.S. attorney’s office in the district where the alleged crime is thought to have occurred. (Prosecutions related to the events of January 6, for instance, are being handled by the U.S. attorney’s office for the District of Columbia.) When prosecutors from a U.S. attorney’s office seek a search warrant in court, they must describe the evidence they expect to seize from the person or property targeted in the warrant. That description usually tells us the alleged crime(s) the court has found probable cause of, based on the sworn application submitted under seal by the prosecutors and agents. (The warrant application is not unsealed and disclosed unless or until charges are filed.)
Yet as the New York Times reports, the FBI agents who accosted Eastman as he was leaving a New Mexico restaurant last Wednesday evening purported to be working on behalf of the Justice Department’s Office of Inspector General, not a district U.S. attorney’s office. According to Eastman, “the warrant does not even mention, much less describe with specificity, any particular crime for which evidence sought by the warrant might be relevant.” (If Eastman told the media what evidence the warrant expressly sought, the Times does not report this. Generally, we can infer what crimes the court has found probable cause to suspect occurred by the warrant’s description of the evidence for which the agents are authorized to search.)
Understand: Unlike district U.S. attorney’s offices around the country, the DOJ inspector-general’s office does not have wide-ranging jurisdiction to enforce federal criminal law. The IG’s very narrow jurisdiction is “to detect and deter waste, fraud, abuse, and misconduct involving DOJ programs and personnel, and promote economy and efficiency in DOJ operations.”
How, exactly, does that give the OIG legitimate cause to target John Eastman? He was not a government employee in 2020, much less a Justice Department employee. For many years, he has been an academic and private lawyer. So how on earth does he come under the investigative purview of the Justice Department’s IG, who is only authorized to investigate the abuse of DOJ programs? It must be because Eastman collaborated with Jeffrey Clark, who was acting head of DOJ’s Criminal Division when President Trump enticed him into the “stop the steal” campaign — which (again, not coincidentally) was the subject of the January 6 committee’s hearing last Friday.
The day before that hearing, in the early morning hours and fully 17 months after the relevant events, the FBI executed a court-authorized search warrant at Clark’s home in northern Virginia — reportedly forcing him out onto the street in his pajamas as a dozen agents tossed his residence for over three hours and seized his electronic devices.
According to the Times, “the search at Mr. Clark’s home was a significant step in the Justice Department’s many-tentacled inquiry into the efforts to subvert the democratic process after the 2020 election.” Really? The Justice Department’s IG has no authority to conduct such an investigation. To repeat, the IG is confined to probing misconduct by Justice Department employees that undermines Justice Department programs. It is not the IG’s mission to investigate — much less obtain search warrants to probe — such felony federal violations as obstruction of Congress and seditious conspiracy.
Moreover, the IG has no jurisdiction to investigate Eastman. As DOJ IG Michael Horowitz explained in opening, with great fanfare, an investigation into whether DOJ employees improperly sought to overturn the 2020 election, the IG’s jurisdiction does not even extend to government officials who are not former or current DOJ officials. Indeed, during his reviews of the Clinton emails and the Trump–Russia investigations, Horowitz occasionally complained about being hamstrung by the fact that he could not compel cooperation from former FBI and DOJ employees, and had no authority to investigate and prosecute crimes unrelated to DOJ business. Apparently, those limitations are no longer an issue, since the IG is now targeting Eastman, who was never a Trump administration official at all, much less a former DOJ employee.
Clearly, rather than admit that it is conducting a criminal investigation of Donald Trump, the Biden Justice Department is pretending that it’s just pursuing an inspector-general inquiry into whether Jeffrey Clark engaged in waste, fraud, or abuse of DOJ programs. And in connection with that inquiry, the DOJ would have you believe it went to the trouble of obtaining a search warrant for Eastman’s phone, and of having the FBI blindside him in a restaurant 2,000 miles away from Washington to execute it, just to poke around for evidence that Clark abused DOJ programs.
This was not a pretext to seek evidence that Eastman and Clark engaged in a criminal conspiracy with Trump, no siree. What would make you suspect such a thing?