FBI General Counsel Dana Boente has proven to be a key player in the Trump Administration. Few, however, are aware of the many crucial positions he has held—and why he may have held them.
During President Donald Trump’s first two years in office, Boente has served as the Acting Attorney General, Acting Deputy Attorney General, Acting Head of the Justice Department’s (DOJ) National Security Division, and currently serves as the FBI’s General Counsel.
Boente also concurrently served as the U.S. Attorney for the Eastern District of Virginia (EDVA) from Sept. 23, 2013, to Jan. 28, 2018, a particularly significant assignment as the EDVA often handles significant terrorism, espionage, and public corruption cases. One of the trials of Trump’s former campaign manager, Paul Manafort, took place in an EDVA court and the recently unsealed affidavit against Wikileaks founder Julian Assange was filed in the district during Boente’s tenure. If Assange is extradited, his trial will take place in an EDVA courtroom.
To more fully understand Boente’s role, we need to go back to Jan. 13, 2017, when President Barack Obama issued a last-minute executive order that altered the line of succession within the DOJ.
Obama’s executive order placed the U.S. attorney for the District of Columbia next in line behind the department’s senior leadership. The U.S. attorney at the time was Channing Phillips, an Obama nominee who had been named as acting U.S. attorney by Attorney General Loretta Lynch on Oct. 19, 2015. Phillips was never confirmed and remained as acting U.S. attorney throughout his tenure at the District of Columbia. Obama’s order removed Boente, the U.S. Attorney for the EDVA, from the AG succession list and replaced him with Phillips.
Phillips was first hired by former Attorney General Eric Holder in 1994 for a position in the D.C. U.S. attorney’s office. In 2010, Phillips served as a senior adviser to Holder and stayed in that position at the Office of the Attorney General after Holder was replaced by AG Lynch in April 2015. Phillips, as the U.S. Attorney for D.C., closed out a multi-year federal probe into illegal financing of former D.C. mayor Vincent Gray’s campaign with no charges filed against Gray.
The revised succession action was not done in consultation with the incoming Trump administration and Obama provided no rationale for his last-minute executive order, which placed the U.S. attorneys in the District of Columbia, the Northern District of Illinois, and the Central District of California as next, respectively, in the AG succession line.
It appears the Obama administration was hoping the Russia investigation would default to Channing in the event that President Trump’s pick for Attorney General, Jeff Sessions, was forced to recuse himself from the investigation. Sessions, whose confirmation hearings began three days before the order, was already coming under intense scrutiny.
On Jan. 27, 2017, just seven days after his inauguration, President Trump signed Executive Order 13769, also known as the travel ban, which placed a 90-day suspension on U.S. entry for all citizens of “countries of particular concern.” This designation—and the nations which made up the list—was created by the Obama Administration and included seven terror-prone nations: Iran, Iraq, Libya, Sudan, Yemen, Somalia, and Syria.
Upon the firing of Yates, Trump ignored the revised succession order, as he is legally allowed to do, and instead appointed Boente, who was still the U.S. attorney for the Eastern District of Virginia, as acting attorney general on Jan. 30, 2017, the same day Yates was fired.
On Feb. 9, 2017, the same day that Sessions was sworn in as attorney general, Trump issued a new executive order that reversed Obama’s earlier order and reverted the formal succession at the DOJ back to its original form.
After Sessions was confirmed, Boente became the acting Deputy AG, reporting to AG Sessions. Boente remained the U.S. Attorney for the EDVA at the same time. Boente would remain in the Deputy AG role until the April 25th confirmation of Rod Rosenstein as deputy attorney general.
On March 10, President Trump would abruptly fire 46 Obama-era U.S. attorneys. The firings appear to have been unexpected and included the U.S. Attorney for the Southern District of New York, Preet Bharara, who had previously been told he would stay. Generally speaking, it is customary for a new administration to purge the prior U.S. attorneys and replace them with their own candidates.
There has been some confusion around this event. There are actually a total of 93 U.S. attorneys, but 16 had already left their posts following the election. The remaining 31 attorneys not fired by Trump were either acting U.S. attorneys or had been specially appointed. These positions were already technically vacant and would be automatically filled once Trump had his new nominees confirmed by the Senate.
In the days following the firings, Trump declined the resignations of just three U.S. attorneys: Rosenstein, who was the U.S. attorney in Maryland; John Huber, the U.S. attorney in Utah; and Boente, from the EDVA. Two others, Connecticut U.S. Attorney Deirdre Daly and Richard Hartunian of the Northern District, were also allowed to stay on for several more months so that they could complete 20 years of service with the DOJ.
Although Sessions was charged by Trump to carry out the firings, it was actually Boente as acting deputy AG who was making the phone calls, including the one to Bharara, who initially resisted by refusing to hand in his resignation, forcing Trump to actually fire him.
On March 20, 2017, Comey was scheduled to testify before Congress. It was Boente who authorized Comey to confirm the existence of the Russia investigation as Sessions had recused himself from the Russia investigation on March 2. Boente also agreed that Comey should decline to discuss which individuals were under investigation.
In the final report by special counsel Robert Mueller, it is noted that Boente told White House Counsel Don McGahn that there “was no good way to shorten the investigation and attempting to do so could erode confidence in the investigation’s conclusions.” McGahn told the special counsel that Boente said he “did not think it was sustainable for Comey to stay on as FBI director” although Boente said he did not recall stating this.
On March 31, 2017, Trump changed the DOJ succession order one final time, swapping out the U.S. attorneys for the Northern District of Illinois and the Western District of Missouri for the U.S. attorneys of the Eastern District of North Carolina and the Northern District of Texas.
Following the April 25, 2017, confirmation of Deputy AG Rosenstein, Boente, who still remained the U.S. attorney for the EDVA, lasted three days without a secondary role. On April 28, 2017, Boente was appointed as the acting head of the DOJ’s National Security Division (NSD), replacing then-acting assistant Attorney General Mary McCord, who had abruptly announced her resignation. The NSD, which is responsible for counterterrorism, counterintelligence, and cyber-threat work, also oversaw the FBI’s investigation into alleged Trump-Russia collusion prior to Mueller’s assumption of the investigation on May 17, 2017.
McCord played a role in the resignation of Trump’s national security advisor, Lt. Gen. Michael Flynn. McCord accompanied Yates to see White House Counsel Don McGahn regarding Flynn immediately following Flynn’s interview with the FBI in January 2017. Yates would later testify before Congress that Flynn’s call with Russian Ambassador Sergei Kislyak, and his subsequent FBI interview, “was a topic of a whole lot of discussion in DOJ and with other members of the intel community.”
McCord had become the acting head at the NSD following the sudden resignation of John Carlin in 2016.
John Carlin’s Filing of Section 702 Certification
The DOJ’s NSD, which had been intimately involved in both the Clinton email investigation and the FBI’s counterintelligence investigation into the Trump campaign, maintains oversight of the intelligence agencies’ use of Section 702 authority. The NSD and the Office of the Director of National Intelligence (ODNI) jointly conduct reviews of the intelligence agencies’ Section 702 activities every 60 days. The NSD—with notice to the ODNI—is required to report any incidents of agency noncompliance or misconduct to the FISA court.
Instead of issuing individual court orders, the attorney general and the director of national intelligence (DNI) are required by Section 702 to provide the Foreign Intelligence Surveillance Court (FISC) with annual certifications that specify categories of foreign intelligence information the government is authorized to acquire, pursuant to Section 702.
Carlin filed the government’s proposed 2016 Section 702 certifications on Sept. 26, 2016. Carlin knew the general status of an ongoing compliance review being conducted by NSA Director Mike Rogers as the NSD was part of the review. Carlin failed to disclose Rogers’s ongoing Section 702-compliance review to the court. Carlin also failed to disclose a critical Jan. 7, 2016, report by the NSA inspector general and associated FISA abuse to the FISA court in his 2016 certification.
On Sept. 27, 2016, the day after he filed the annual certifications, Carlin announced his resignation, which would become effective on Oct. 15, 2016.
On Oct. 4, 2016, a standard follow-up court hearing was held (Page 19), with Carlin present. Again, he made no disclosure of FISA abuse or other related issues. This lack of disclosure would later be noted by the FISA court in an April 2017 ruling:
“The government’s failure to disclose those IG and OCO reviews at the October 4, 2016 hearing [was ascribed] to an institutional ‘lack of candor.’”
On Oct. 24, 2016, NSA Director Rogers verbally informed the FISA Court of the findings from his investigation and on Oc. 26, 2016, Rogers appeared formally before the FISA Court and presented the full findings of his audit. The results of Rogers’s work appeared to have been a complete surprise to the FISA Court as was noted in their April 2017 ruling:
“On October 24, 2016, the government orally apprised the Court of significant non-compliance with the NSA’s minimization procedures involving queries of data acquired under Section 702 using U.S. person identifiers. The full scope of non-compliant querying practices had not been previously disclosed to the Court. Two days later, on the day the Court otherwise would have had to complete its review of the certifications and procedures, the government made a written submission regarding those compliance problems.”
As the FISA court noted in its April 26, 2017, ruling, the abuses had been occurring since at least November 2015:
“The FBI had disclosed raw FISA information, including but not limited to Section 702-acquired information, … to private contractors.
“Private contractors had access to raw FISA information on FBI storage systems.
“Contractors had access to raw FISA information that went well beyond what was necessary to respond to the FBI’s requests.”
The FISA Court report is particularly focused on the FBI:
“The Court is concerned about the FBI’s apparent disregard of minimization rules and whether the FBI may be engaging in similar disclosures of raw Section 702 information that have not been reported.”
The FISA Court disclosed that illegal NSA database searches were endemic. Private contractors, employed by the FBI, were given full access to the NSA database. Once in the contractors’ possession, the data couldn’t be traced.
None of this information had been disclosed to the FISA court by Carlin. The information appears to have been deliberately withheld.
The NSD, a focal point for problems within the DOJ, became the responsibility of Boente for the next nine months. Notably, Boente remained in his role as U.S. attorney for the EDVA for the entire period he was running the NSD.
On June 12, 2017, Trump announced his first wave of U.S. attorney candidates. Among them were John Huber and Jessie Liu. Huber was renominated for his U.S. attorney post in Utah while Liu, who was serving as the deputy general counsel for the Department of the Treasury, was nominated as the U.S. attorney for the District of Columbia, replacing Obama’s intended AG successor, Channing Phillips. Liu had met directly with Trump prior to her nomination for the position of U.S. attorney.
Liu, who was confirmed on Sept. 25, 2017, had an extensive background within the DOJ, having served as the deputy chief of staff for the NSD, as counsel to the deputy attorney general, and as deputy assistant attorney general in the Civil Rights Division.
On March 5, 2019, Trump nominated Liu for the third-highest post at the DOJ—associate attorney general. Liu had been specifically recommended for the post by current Attorney General William Barr, who said of Liu, “With her record of public service, particularly in civil justice and federal law enforcement matters, it is clear that she will be an outstanding addition to our leadership team at the Department.”
Liu’s nomination fell through on March 28 due to her prior role as the vice-president of the National Association of Women Lawyers—a group that supported abortion rights. Barr expressed his displeasure at the withdrawal of Liu’s nomination, stating, “She has been an outstanding United States attorney and would have made an outstanding associate attorney general. I have zero doubt she would have faithfully executed my priorities and advanced my rule-of-law agenda.”
Barr later announced that he was appointing Liu to lead the attorney general’s advisory committee, which provides counsel to the attorney general on policy, procedure, and management matters. Barr said Liu “will be an integral part of our leadership at the Department.”
One of the cases Liu inherited as the U.S. Attorney for D.C. from Channing Phillips was the prosecution of Imran Awan, a former IT employee for House Democrats. Awan had pleaded guilty on July 3, 2018, to a federal charge stemming from a false statement made on a home equity loan.
Phillips’s office had brought no charges against Awan related to allegations of hacking House IT systems. In September 2016, the House Office of Inspector General had warned House leadership and the Committee on House Administration that Awan and other family members had made unauthorized logins on the systems of House members.
“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,” Sessions said on March 29, 2018, when responding to congressional requests for the possible appointment of a second special counsel.
Horowitz is currently conducting several investigations, including into FISA abuse and media leaks by the FBI.
On March 7, 2019, Barr had a meeting with Huber, who serves as vice chair of the Attorney General’s Advisory Committee—the same committee that Barr had recently appointed Liu to lead.
On Sept. 2, 2017, Trump nominated John Demers to be the head of the NSD, but his confirmation process was lengthy and Demers was not able to assume his role until Feb. 15, 2018. Demers, who had prior experience with the NSD, clerked for Supreme Court Justice Antonin Scalia.
On Oct, 27, 2017, Boente announced that he would be resigning from his post at the EDVA—and at the NSD—but also noted that he would remain in those positions until Trump nominated and confirmed his replacements. Boente officially gave up his U.S. attorney role on Jan. 28, 2018, when he was finally replaced by Tracy Doherty-McCormick.
Zachary Terwilliger was the individual who ultimately replaced Boente as the U.S. attorney for the EDVA. Prior to his appointment to the EDVA, Terwilliger served as an associate deputy attorney general, and was chief of staff to Deputy Attorney General Rosenstein. Terwilliger previously worked as an assistant U.S. attorney at the EDVA during Boente’s time as U.S. Attorney and also worked on criminal legislation under Sen. Chuck Grassley (R-Iowa) for the Senate Judiciary Committee.
Terwilliger’s father, George Terwilliger III, worked with AG Barr and served as the deputy attorney general and the acting attorney general. Notably, George Terwilliger III succeeded Barr as deputy attorney general when Barr was promoted to attorney general in 1992. As George Terwilliger III noted in an earlier op-ed in support of Barr’s nomination by Trump, “Barr and I worked side-by-side—some said joined at the hip—when we served as attorney general and deputy attorney general, respectively, together.”
George Terwilliger III recently wrote an op-ed in the Washington Post that was supportive of AG Barr’s decision that Trump did not engage in obstruction.
Boente Becomes FBI’s General Counsel
On Jan 23, 2018, Boente once again shifted roles, this time becoming the FBI’s general counsel, replacing James Baker, who had been demoted and reassigned. Baker would later leave the FBI in May 2018. Given the importance of Boente to the Trump administration, it is likely that Trump was involved in the decision.
Baker is currently the subject of an ongoing criminal leak investigation. Baker also played a significant role in both the Clinton and Trump investigations. He would also be involved in the FBI’s application for a FISA warrant on former Trump campaign adviser Carter Page.
Carter Page FISA Application
Boente and Rosenstein signed off on the second and third renewals, respectively, of the Page FISA—the last two FISA extensions—while they each occupied the Deputy AG spot. This has often been referenced in relation to their roles.
Boente’s FBI signer was FBI Director Comey. Rosenstein’s was Deputy FBI Director Andrew McCabe. Both signings came at critical points in time. With Boente and Comey, the April 7 signing date was in the weeks prior to Comey’s May 9 firing by Trump and just four days before the Washington Post reported on the existence of the Page FISA. For Rosenstein and McCabe, the June 29 signing took place around the time the IG first discovered the Page/Strzok texts.
Notably, the final signing happened right around the same time that special counsel Mueller interviewed Dan Coats, the director of national intelligence and Admiral Rogers, the head of the National Security Agency.
There remains a number of unanswered questions in relation to their signing of the Page FISA. During a June 28, 2018, sworn testimony before Congress, Rosenstein addressed the issue but also raised additional questions in the process:
“We sit down with a team of attorneys from the Department of Justice. All of whom review that and provide a briefing for us about what’s in it. And I’ve reviewed that one in some detail, and I can tell you the information that’s public about that doesn’t match with my understanding of the one that I signed, but I think it’s appropriate to let the Inspector General complete that investigation. These are serious allegations. I don’t do the investigation—I’m not the affiant. I’m reviewing the finished product.
If the Inspector General finds that I did something wrong then I’ll respect that judgment, but I think it is highly, highly unlikely given the way the process works.”
On Dec. 6, 2018, Chairman of the House Intelligence Committee Devin Nunes discussed the FISA signing issue during a Fox News segment with Sean Hannity:
Hannity: This would be Comey signing off on it, Rod Rosenstein signing off on the last one…
Nunes: Well, they’re the ones that signed off on it—but they’re not necessarily the ones who would have provided and doctored the information. So really, the people that are culpable here are the ones who were in these discussions, that knew about the information that was not provided to the court.
For now, we do not know the answers that lie behind the signing of those FISA renewals.
What does seem apparent is Trump has entrusted Boente with some of the most crucial roles at the most crucial times during the first years of his administration. Also worth asking is a very simple question. Why did Obama go to the trouble of signing a last-minute executive order, the entire purpose of which was to remove Boente from the attorney general succession line?
This article is part of my ongoing series at The Epoch Times.