Published by The Lawfare Institute
in Cooperation With
For the second time this week, we have to analyze the propriety of communications between the White House and elements of the Justice Department. The messiness of the allegations pretty neatly sums up why such communications are, as a matter of policy convention, so restricted to begin with.
According to some anonymous senior White House officials, President Trump’s chief of staff Reince Priebus asked FBI Deputy Director Andrew McCabe, and possibly Director Jim Comey, to publicly refute the New York Times’ report of frequent communications between senior members of Trump's campaign and Russian agents in the lead-up to the 2016 election. But the administration is hitting back: Sean Spicer and yet another anonymous official say that Priebus made the request only after McCabe commented to Priebus that the Times' story on the matter contained inaccuracies. The FBI hasn’t commented on or disputed the White House’s version of events—but that can’t be interpreted to signify anything, as the silence is in line with its general stance of saying as little as possible (for which there is no self-preservation exception).
For analytical clarity, there are a few issues here we should separate. One is whether Priebus, in his capacity as chief of staff, should be talking to McCabe about an investigation or case at all—and if so, under what circumstances. The second issue is the substance of Priebus's alleged request. There's a difference between trying to influence a decision about the trajectory of an investigation or case (obviously improper, and the primary thing the Justice Department’s 2009 guidance seeks to prevent) and, on the other hand, so fundamentally misunderstanding how the Justice Department works that you try to influence what the FBI or another agency communicates to the public about the status of an investigation.
As to the first issue, as I explained in this post a few days ago, the variation of the Justice Department policy presently in force (to the best of our knowledge), outlined in a memo issued by then-Attorney General Eric Holder, is primarily geared toward ensuring that legal decisions regarding investigations and cases are insulated from political influence. That said, the policy governs "all communications" between the White House and Justice Department, generally requiring that they start between a select pool of people, which widens as needed to include designated subordinates. So the policy includes the alleged communication between McCabe and Priebus on the Russia investigation. (There is an exception for national security communications involving certain people, but that exception doesn’t apply here.) This is true notwithstanding some of the more nonsensical assertions being made, such as White House spokesman Michael Short’s insistence that “there was no discussion of any investigation—just the inaccuracy of the NYT story.” Discussing the accuracy of media coverage on a specific investigation obviously entails revealing information about the investigation.
We don’t have a lot of information about the substance of the alleged interaction between McCabe and Priebus, and more importantly, we don’t know what preceded it. For example, if McCabe did comment on the accuracy of the Times story, did he do so with any prior Bureau and Department authorization? Is Priebus a “designate[d] subordinate” who has been instructed by the initial White House communicant to carry on contact with the Department? However doubtful it may seem that the alleged interaction was properly provided for, these are relevant questions if we’re really interested in whether a policy violation happened here.
On the second issue, the substance of the alleged communication, Priebus’s statements are a little different from the kind of improper influence explicitly contemplated in the memo—that is, an attempt to influence internal Department decision-making. This is more an attempt to use the Department for inappropriate public-facing ends. It amounts to not just misunderstanding the FBI and Justice Department's mission but also underestimating the apparatus the Department has in place to avoid inappropriate media entanglement.
The FBI in particular and the Justice Department in general have all sorts of internal guidance in place about disclosing information or making statements to the press regarding investigations and cases, from the FBI Ethics and Integrity Program Policy Guide to the U.S. Attorneys' Manual. These guidelines aren’t just about ensuring minimalist disclosures to the public on as as-needed basis; they are rights-protective, prejudice-preclusive provisions designed to ensure that the proper people are signing off on such disclosures.
For anyone who is wondering, as an ethical matter, whether what Priebus did is wrong, and whether it’s time for the White House or Attorney General Jeff Sessions to take a strong public stand on these sorts of alleged communications, I encourage you to move away from the four corners of Holder’s memo and to consult the 1978 speech that Jimmy Carter’s attorney general, Griffin Bell, made when promising an independent Justice Department post-Watergate. It's not an obsolete document; the language of that speech has remained extremely influential over time and its prints are all over Holder's policy guidance.
Several parts of that speech stick out to me here.
First, at one point in that speech, Bell says, "it is improper for any Member of Congress, any member of the White House staff, or anyone else, to attempt to influence anyone in the Justice Department with respect to a particular litigation decision, except by legal argument or the provision of relevant facts." Again, this language makes evident the Justice Department’s focus is on the need to protect the integrity of the legal process itself. But if your inclination is to put Priebus’s alleged request for the FBI to publicly back the administration in an entirely different bucket, note that at another point, Bell points out that communications from certain people in “positions of power” have to be specially screened because they "create a potential for unintentional influence upon a decision."
This is key. We don’t want senior FBI officials telling White House political staffers that a press story on a big ongoing investigation is “B.S." and unauthorized back-and-forth to ensue, because the FBI has a difficult job to do—one that, as Bell emphasizes elsewhere, is loaded with discretionary decisions, and which is put at risk when its partiality is compromised either in reality or in perception.
Second, Bell says:
Our notions of fairness must not change from case to case; they must not be influenced by partisanship, or the privileged social, political or interest-group position of either the individuals involved in particular case" or those who may seek to intervene against them or on their behalf. To implement these procedures, I have asked that the Assistant Attorneys General to refer to the Associate Attorney General, the Deputy Attorney General or to me any relevant Congressional or White House communications prior to particular litigation decisions. This will include especially any communication whatever that seems even marginally improper. And as an additional measure to help spot potential trouble, each Assistant Attorney General should report to the Deputy Attorney General or the Associate Attorney General all communications, press inquiries excluded, about specific cases by persons other than those involved in the litigation (emphasis added).
Like so much of his speech, Bell’s focus here is on the need to shore up public confidence and to preclude even borderline improprieties. He emphasized that need even though, by his assessment 20 months into the job, the "understandable public concern" that political pressures were affecting Justice Department decisions had proven "unfounded." The fact that we are left groping in the dark right now, wondering about what happened between the White House and the FBI, means the system put into place from the time of Griffin Bell, and Edward Levi before him, is under stress.
One point of reassurance: in every version of the story playing out in the press, however otherwise seemingly self-serving the account put forth by the various anonymous voices and White House officials, the FBI ultimately resisted Priebus’s request. The system is at least putting up a strong defense.