Prospect of new special coun­sel rat­tles Jus­tice

The Washington Post - - FRONT PAGE - BY DEVLIN BAR­RETT

At­tor­ney Gen­eral Jeff Ses­sions’s pub­lic sug­ges­tion that he may ap­point a special coun­sel to in­ves­ti­gate Hil­lary Clin­ton has alarmed cur­rent and for­mer Jus­tice Depart­ment of­fi­cials who fear he will fur­ther politi­cize the em­bat­tled agency.

Ses­sions said at a con­gres­sional hear­ing Tues­day that he will weigh rec­om­men­da­tions from se­nior prose­cu­tors on whether to ap­point a special coun­sel over a 2010 ura­nium com­pany deal and other is­sues, in­clud­ing do­na­tions to the Clin­ton Foun­da­tion.

Such an ap­point­ment could give Pres­i­dent Trump and Repub­li­cans a po­lit­i­cal coun­ter­weight to the on­go­ing work of special coun­sel Robert S. Mueller III, who is prob­ing whether any Trump as­so­ciates co­or­di­nated with the Rus­sian gov­ern­ment to in­ter­fere in last year’s pres­i­den­tial elec­tion.

For that rea­son, Ses­sions’s sug­ges­tion has raised fresh ques­tions about the in­de­pen­dence of the Jus­tice Depart­ment in the Trump ad­min­is­tra­tion.

“To have the win­ning side ex­plor­ing the pos­si­bil­ity of pros­e­cut­ing the los­ing side in an elec­tion — it’s un-Amer­i­can, and it’s grotesque,” said John Dan­forth, a for­mer special coun­sel who in­ves­ti­gated the FBI’s role in a vi­o­lent standoff with a cult in Waco, Tex. “The pro­lif­er­a­tion of special coun­sels in a po­lit­i­cal set­ting is very, very bad.”

Peter R. Zei­den­berg, who once served as deputy special coun­sel in the in­ves­ti­ga­tion of for­mer White House aide Lewis “Scooter’’ Libby, said “the best-case sce­nario” is that the at­tor­ney gen­eral is try­ing sim­ply to mol­lify an an­gry pres­i­dent and doesn’t re­ally plan to name a special coun­sel.

If one is ap­pointed to probe Clin­ton mat­ters, “I think the vast ma­jor­ity of peo­ple at DOJ would be com­pletely dis­gusted and de­mor­al­ized by it,’’ said Zei­den­berg, to the Jus­tice Depart­ment. “They don’t like feel­ing that they are po­lit­i­cal tools to be used by the pres­i­dent.’’

A fed­eral law en­force­ment of­fi­cial, who spoke on the con­di­tion of anonymity to speak freely, said the move is par­tic­u­larly frus­trat­ing be­cause many of the sub­jects Ses­sions says could fall un­der the purview of a special coun­sel were pre­vi­ously in­ves­ti­gated by the FBI or are un­der in­ves­ti­ga­tion by the Jus­tice Depart­ment’s in­spec­tor gen­eral.

“Go­ing back to look at is­sues we’ve al­ready looked at — and some is­sues we’re still look­ing at — what is that if not pol­i­tics?” asked the of­fi­cial.

Ses­sions in­sisted in his tes­ti­mony that he is not lean­ing one way or the other on the ap­point­ment of a new special coun­sel and that he is await­ing a de­tailed pre­sen­ta­tion from se­nior of­fi­cials at the Jus­tice Depart­ment.

“I have no pre­judg­ment. I did not mean to sug­gest I was tak­ing sides one way or the other on that sub­ject,’’ he said.

The first year of the Trump has been a tur­bu­lent one for the Jus­tice Depart­ment. FBI Di­rec­tor James B. Comey was fired. The pres­i­dent has re­peat­edly and pub­licly at­tacked the depart­ment, the FBI and se­nior of­fi­cials at those agen­cies, com­plain­ing that he wishes he could have more con­trol over how they pur­sue crim­i­nal cases.

In sev­eral an­gry tweets Nov. 3, the pres­i­dent called again for in­ves­ti­ga­tions of Clin­ton and Democrats, say­ing, “at some point the Jus­tice Depart­ment, and the FBI, must do what is right and proper. The Amer­i­can pub­lic de­serves it!’’

Cur­rent and for­mer Jus­tice Depart­ment of­fi­cials could not re­call the last time the depart­ment pub­licly dan­gled the pos­si­bil­ity of a special coun­sel ap­point­ment. When House Repub­li­cans de­manded a special coun­sel probe of the IRS’s treat­ment of con­ser­va­tive groups dur­ing the Obama ad­min­is­tra­tion, the Jus­tice Depart­ment stayed largely silent on the call un­til it is­sued a lengthy let­ter ex­plain­ing the rea­sons prose­cu­tors would not purre­fer­ring sue charges in the case.

Also un­clear Tues­day was how Ses­sions might ap­point such a special coun­sel for some of the is­sues, given that he has re­cused him­self from in­ves­tiga­tive mat­ters in­volv­ing the 2016 cam­paign due to his vo­cal sup­port of Trump and fierce pub­lic crit­i­cism of Clin­ton.

One of the ar­eas that Repub­li­cans want in­ves­ti­gated is whether do­na­tions to the Clin­ton Foun­da­tion may have been tied to po­lit­i­cal fa­vors by Clin­ton or any of her sub­or­di­nates when she was sec­re­tary of state. The FBI probed that is­sue in 2015 and 2016, but Jus­tice Depart­ment of­fi­cials de­cided there wasn’t enough ev­i­dence to pur­sue a full-fledged in­ves­ti­ga­tion. A sep­a­rate Clin­ton Foun­da­tion­re­lated fed­eral probe has been on­go­ing in Vir­ginia, but its fi­nal dis­po­si­tion is still un­clear, ac­cord­ing to peo­ple fa­mil­iar with the mat­ter.

In his tes­ti­mony, Ses­sions did say that he be­lieved his re­cusal would not bar him from ap­point­ing a special coun­sel to in­ves­ti­ad­min­is­tra­tion gate pos­si­ble wrong­do­ing in­volv­ing Ura­nium One, a Cana­dian min­ing com­pany with U.S. as­sets that was pur­chased by Rus­sia’s nu­clear en­ergy agency. Repub­li­cans have sug­gested that the deal, which re­quired U.S. ap­proval from a mul­ti­a­gency board that in­cluded Clin­ton’s State Depart­ment, should have been blocked be­cause of a sep­a­rate cor­rup­tion probe in­volv­ing Rus­sian ura­nium ship­ments.

Yet the at­tor­ney gen­eral also of­fered a mild re­but­tal to sug­ges­tions by some of his fel­low Repub­li­cans that there are clear con­nec­tions in the ura­nium case that need fur­ther in­ves­ti­ga­tion, not­ing that the ap­proval of the deal was two or three years re­moved from the key events in the cor­rup­tion probe.

Some con­ser­va­tives say a special coun­sel ap­point­ment could have con­se­quences far be­yond Clin­ton. Fox News host Sean Han­nity, who is also an in­for­mal ad­viser to the pres­i­dent, has called for a special coun­sel to probe the ura­nium deal and has said that be­cause Mueller was the di­rec­tor of the FBI at the time Ura­nium One was pur­chased, Mueller should be re­moved from his role prob­ing the Trump White House.

“There’s no way the Amer­i­can peo­ple can trust Robert Mueller to in­ves­ti­gate any­thing Rus­sia-re­lated,” Han­nity has said.

For­mer fed­eral pros­e­cu­tor Andrew McCarthy said he doubted there was any pros­e­cu­tor ap­point­ment or as­sign­ment that would lead to Mueller step­ping down.

“It seems they’re frus­trated by the Mueller in­ves­ti­ga­tion, and they think, ‘Why don’t we get one to look at the Clin­ton stuff?’ And that’s just not the way it’s sup­posed to work,” he said.

McCarthy also said he thought it was a mis­take, legally and po­lit­i­cally, for the Jus­tice Depart­ment to pub­licly sug­gest that it might ap­point a special coun­sel.

“I don’t know what Ses­sions is go­ing to do here, but I don’t see any good rea­son for the Jus­tice Depart­ment, in a sit­u­a­tion where it’s not the ad­min­is­tra­tion in­ves­ti­gat­ing it­self, to ap­point a special coun­sel,” he said. “You should never float the idea on your side, be­cause when you float the idea, you are at least sug­gest­ing there’s a pos­si­bil­ity you may not be ca­pa­ble of do­ing the job your­self for eth­i­cal rea­sons.”

BILL O’LEARY/THE WASH­ING­TON POST

At­tor­ney Gen­eral Jeff Ses­sions told a con­gres­sional hear­ing that de­spite in­con­sis­ten­cies, he had “al­ways told the truth.”

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