On March 17, 2018, I wrote about this letter from Assistant Attorney General Stephen Boyd. A letter he sent on November 13, 2017:
Attorney General Jeff Sessions had previously noted the appointment of an Outside Prosecutorial Team. He said so himself on March 7, 2018:
I have appointed a person outside of Washington, many years in the Department of Justice, to look at all the allegations that the House Judiciary Committee members sent to us – and we’re conducting that investigation.
The significance of Boyd’s letter was one of timing. It provided evidence this Prosecutorial Team has been in place since at least mid-November 2017:
The Attorney General has directed senior federal prosecutors to evaluate certain issues raised in your letters. These senior prosecutors will report directly to the Attorney General and the Deputy Attorney General.
The importance of this cannot be over-emphasized.
Although it meant little at the time – a new appointment was made on November 14, 2017 by the Attorney General’s Advisory Committee:
Utah U.S. Attorney John W. Huber appointed vice chair of Attorney General’s Advisory Committee. The AGAC provides counsel to the Attorney General on issues impacting U.S. Attorneys Offices nationwide. https://t.co/WVdbGoZv2F
— US Attorney Utah (@DUTnews) November 14, 2017
Huber’s appointment as Vice Chair of the Attorney General’s Advisory Committee suddenly gained more relevance.
Yesterday, under increasing pressure to name a Special Counsel, AG Jeff Sessions made this announcement:
Sessions would not be appointing a Special Counsel.
Instead he announced that an Outside Prosecutor, John Huber, would be leading a team working in cooperation with Inspector General Horowitz.
The consensus response to Sessions’ announcement was…poor.
Huber’s appointment was characterized by the media as that of one man – put into place only yesterday. Both assertions are entirely incorrect.
Frustration over the lack of Special Counsel is understandable on the surface – but dig a bit deeper and it becomes easy to see why Sessions chose the path he did.
Focus on the contents of Sessions’ letter:
In addition to his ongoing investigation, the Inspector General has now confirmed that he has opened a review into the Department’s compliance with certain legal requirements and Department and FBI policies and procedures with respect to certain applications filed with the US Foreign Intelligence Surveillance Court.
Congress created the Department’s Office of the Inspector General explicitly for the purpose of, among other things, investigating alleged violations of criminal and civil laws by Department employees, including actions taken by former employees after they have left government service. The Inspector General’s jurisdiction extends not only to allegations of legal violations, but also to allegations that Department employees violated established policies as well.
If the Inspector General finds evidence of criminal wrongdoing, he may refer it to a United States Attorney who can then convene a grand jury or take other appropriate actions. To be clear, the Inspector General has the authority to investigate allegations of wrongdoing, collect evidence through subpoena, and develop Cases for presentation to the Attorney General and the Deputy Attorney General for prosecution or other action.
The Inspector General also may, under appropriate circumstances, make information available to the public even if no criminal or disciplinary action is recommended. In contrast, this type of information would not normally be publicly available after the conclusion of a traditional criminal investigation.
Under the regulations, any Special Counsel must be selected from outside the United States Government. To justify such an appointment, the Attorney General would need to conclude that the public interest would be served by removing a large degree of responsibility for the matter from the Department of Justice.
Consider what’s really being said by Sessions – and examine his comments in the context of an ongoing and massive Investigation by the Inspector General.
Unlike a prosecutor, the Inspector General’s jurisdiction extends beyond legal violations and into departmental policy violations.
The Inspector General has the power to make information from his Investigation available to the public – at a level of disclosure that far exceeds that of a Special Counsel.
The Inspector General cannot prosecute directly, but – and this is a huge “but” – he can refer his findings to a U.S. Attorney who “can then convene a grand jury or take other appropriate actions”.
We have reason to believe that at least one grand jury is already in place – see this March 23, 2018 piece, Goodlatte’s Subpoena, a Grand Jury Empaneled & Clinton Foundation FISA Surveillance.
Perhaps the most important point AG Sessions makes in the entirety of the document comes here:
To justify such an appointment [Special Counsel], the Attorney General would need to conclude that the public interest would be served by removing a large degree of responsibility for the matter from the Department of Justice.
Michael Horowitz is the Inspector General of the Department of Justice.
What AG Sessions is stating is both simple – and alarming.
The appointment of a Special Counsel at this crucial moment might impair Inspector General Horowitz’s entire investigation.
Sessions is not ready to appoint a Special Counsel – yet.
For those less familiar with Inspector General Horowitz and his Investigation, may I suggest the following:
In high-profile circumstances involving other politically sensitive matters, it has been more common to make special arrangements within the Department to ensure that actual or apparent conflicts can be avoided, while experienced and accountable prosecutors conduct an efficient and appropriate investigation that comports with the interests of justice and with the public interest.
As noted in Assistant Attorney General Stephen E. Boyd’s November 13, 2017, letter to the House Committee on the Judiciary, I already have directed senior federal prosecutors to evaluate certain issues previously raised by the Committee.
Specifically, I asked United States Attorney John W. Huber to lead this effort. Mr. Huber is an experienced federal prosecutor who was twice confirmed unanimously by the Senate as United States Attorney for the District of Utah in 2015 and 2017.
Mr. Huber previously served in leadership roles within the US. Attorney’s Office as the National Security Section Chief and the Executive Assistant US. Attorney. He has personally prosecuted a number of high-profile cases and coordinated task forces focused against violent crime and terrorism. This work garnered commendations from the highest levels of the Department over the course of two administrations.
Mr. Huber is conducting his work from outside the Washington, D.C. area and in cooperation with the Inspector General. The additional matters raised in your March 6, 2018, letter fall within the scope of his existing mandate, and I am confident that Mr. Huber’s review will include a full, complete, and objective evaluation of these matters in a manner that is consistent with the law and the facts.
I receive regular updates from Mr. Huber and upon the conclusion of his review, will receive his recommendations as to whether any matters not currently under investigation should be opened, whether any matters currently under investigation require further resources, or whether any matters merit the appointment of a Special Counsel.
I expect every person in this Department to adhere to the highest level of integrity, ethics, and professionalism. If anyone falls short of these high standards, I will fulfill my responsibility to take necessary action to protect the integrity of our work.
It’s not just one individual Sessions is referring to:
I already have directed senior federal prosecutors to evaluate certain issues previously raised by the Committee.
I asked United States Attorney John W. Huber to lead this effort.
From Stephen Boyd’s November 13, 2017 response letter:
The Attorney General has directed senior federal prosecutors to evaluate certain issues raised in your letters.
These senior prosecutors will report directly to the Attorney General and the Deputy Attorney General.
There is a full team of senior federal prosecutors in place – working directly with Inspector General Horowitz and his 1.2 million evidentiary documents.
They have been in place, investigating, since at least November 13, 2017 – four and half months into the process.
As I noted before, we have reason to believe that at least one grand jury is already in place.
Note also, a Special Counsel Appointment is not off the table – it is simply deferred.
Some background on John Huber here. I’ll take a much closer look at Huber going forward.
Inspector General Horowitz’s March 28, 2018, Initiation of Review into FISA abuse has been interpreted by some as evidence that only now is IG Horowitz turning his focus to this and other areas.
This is incorrect.
In a recent article, Understanding the Inspector General’s Investigation, I made the case that the Inspector General’s investigative scope broadened significantly no later than July 14, 2017:
On July 14, 2017, Inspector General Michael Horowitz sent a letter in response to an earlier request from several Democratic Senators regarding ongoing investigations and the recusal of AG Jeff Sessions.
The Inspector General’s July 2017 letter contained only three short paragraphs. Only two sentences were actually important:
As you know, in January 2017, the Office of Inspector General initiated a review of allegations regarding various actions by the Department of Justice and the Federal Bureau of Investigation in advance of the 2016 election…We are continuing to assess what, if any, additional review would be appropriate for the OIG to undertake and will update you as appropriate.
The Inspector General was suddenly responding to a letter the Democrat Senators had sent him more than four months earlier – on March 3, 2017.
The reason for the strange timing of the Inspector General’s letter was simple. It was at this point – July 14, 2017 – the Inspector General’s Investigation shifted and expanded.
July 14, 2017, was exactly the same time when the Inspector General’s Investigation discovered FBI Agent Peter Strzok’s texts.
We know this because of a timeline IG Horowitz would later detail in a December 13, 2017 response to a letter from Senators Johnson and Grassley.
From Inspector General Horowitz’s December 2017 letter:
After finding a number of politically-oriented text messages between Page and Strzok, the OIG sought from the FBI all text messages between Strzok and Page from their FBI-issued phones through November 30, 2016, which covered the entire period of the Clinton e-mail server investigation. The FBI produced these text messages on July 20, 2017.
Following our review of those text messages, the OIG expanded our request to the FBI to include all text messages between Strzok and Page from November 30, 2016, through the date of the document request, which was July 28, 2017. The OIG received these additional messages on August 10, 2017.
From the closing section of IG Horowitz’s letter:
The OIG’s review is ongoing, and we currently are in the process of completing our witness interviews and document review. Thereafter, we intend to issue a public report with our findings on these and the other issues we are reviewing, and we would be pleased to discuss them with you at that time.
The Inspector General cc: the same senior Democrat Senator to which he wrote that July 14, 2017 letter.
Prior to the discovery of Strzok’s texts, the Inspector General had been focusing on events up to November 30, 2016. On July 14, 2017 that changed. He was now looking at everything.
There are other pieces of evidence as well.
Though both men remain on Devin Nunes’ interview list, neither Nunes nor anyone from the House Intelligence Committee has interviewed either Priestap or Ohr to date.
There is a simple explanation for this.
On February 18, 2018, in Resignations, Demotions & Some Details, I added four more names to that list – bringing the number of cooperating individuals to five:
- James Baker – FBI
- Peter Strzok – FBI
- Lisa Page – FBI/DOJ
- Bruce Ohr – DOJ
- Bill Priestap – FBI
With the exception of Priestap who still holds his original position, these individuals have all been demoted into oblivion. Their careers are over – and have been. And they all still work at the FBI or DOJ. Under the watchful eye of the Inspector General.
Priestap, Ohr and the others have been interviewed by the Inspector General. Additionally, it is likely that IG Horowitz was the individual who unearthed the FBI’s many interviews of Ohr regarding his ongoing contacts with Christopher Steele.
Andrew McCabe was quoted in the House Memo as well. He noted that without the Steele Dossier, the FISA Application never would have been made.
Representative Jim Jordan recently noted that McCabe lied four times – including twice under oath while being interviewed by the Inspector General:
Andrew McCabe, he didn’t lie just once, he lied four times. Four times. He lied to [former FBI Director] James Comey, he lied to the Office of Professional Responsibility, and he lied twice under oath to the Inspector General.
It wasn’t once, it wasn’t twice, it wasn’t even three times, four times he lied about leaking information to the Wall Street Journal about the FBI.
According to several U.S. officials, McCabe’s government communications were collected as part of the ongoing DOJ Inspector General investigation.
Important Note: The House Memo’s primary intent was to detail FISA Abuses. The Inspector General’s recent Initiation of Review is focused on FISA abuse.
For any who might suspect the Inspector General is not already fully up to speed on the many FISA abuses, I encourage you to read The Uncovering – Section 702 “About” Queries.
It details the incredible level of FISA abuses engaged in by the FBI & DOJ beginning in November 2015. These abuses were uncovered by NSA Director Mike Rogers who presented his findings to the FISA Court on October 26, 2016.
The findings were revealed in an April 26, 2017 unsealed FISA Court Ruling.
The Inspector General said it plainly on January 12, 2017:
If circumstances warrant, the OIG will consider including other issues that may arise during the course of the review.
He hinted at his decision in his July 14, 2017 letter:
We are continuing to assess what, if any, additional review would be appropriate for the OIG to undertake.
IG Horowitz was more direct in his December 2, 2017 clarification statement:
The OIG review would, among other things, consider whether certain underlying investigative decisions were based on improper considerations and that we also would include issues that might arise during the course of the review.
The Inspector General noted his decision in his December 13, 2017 letter:
We intend to issue a public report with our findings on these and the other issues we are reviewing.
The upshot is this.
The Inspector General already has all the evidence in his possession. His investigation formally expanded on July 14, 2017.
The Investigative Phase is mostly completed.
Now comes the dissemination:
- Phase I – The Clinton Email Investigation.
- Phase II – Carter Page FISA Application.
- Phase III – Russia-Trump Investigation.
There will be overlap, but each Phase moves higher up the political echelon. Phase III includes the broader Intelligence Community and may require Congressional Investigation.
Or Special Counsel Intervention.
This is why Attorney General Sessions is reluctant to appoint a Special Counsel at this particular time.
It’s likely that a Special Counsel is ultimately appointed – probably in Phase III.
But it appears that Sessions intends to more fully build his case first – using the Investigation of Inspector General Horowitz in tandem with that Team of Outside Prosecutors.
For a more complete discussion of the Inspector General’s Investigation see: