Assistant Attorney General Stephen Boyd sent a letter to the chairman of the House Judiciary Committee Monday, indicating that career prosecutors at the Department of Justice would review controversies arising from the Clinton Foundation and former FBI Director James Comey’s handling of the Clinton email investigation.
The letter prompted speculation that DOJ was assembling a predicate for a criminal investigation and the appointment of a special counsel. President Donald Trump himself has publicly encouraged the attorney general to pursue a criminal probe of matters relating to the Clinton Foundation, amplifying speculation that his longtime ally would acquiesce to the pressure in a bid to revive his strained relationship with the president.
The text of the letter doesn’t quite bear that reading.
As a preliminary matter, the letter was sent to House Judiciary one day before Sessions was scheduled to testify before the panel. Committee Republicans have twice sent letters to Sessions and Deputy Attorney General Rod Rosenstein urging an investigation of a barrage of Clinton shenanigans as well as Comey’s alleged politicization of Bureau investigations relating to the Clintons. Those letters, dated July 27 and Sept. 26, both appear to have gone unanswered. Therefore, it is not unusual that the Justice Department would send its response to the Committee the day before Sessions was slated to appear, as DOJ’s silence on the request would otherwise have been a point of conflict.
The letter itself reveals little. It reiterates the Department’s commitment to “provide timely and accurate information…in a non-political matter,” before informing Committee Republicans that Sessions had referred their concerns to senior career prosecutors, who would consider the matter and then make a recommendation to DOJ leadership as to how they should proceed.
Consistent with DOJ policy, the letter does not confirm the existence of an investigation, nor does it promise an investigation is forthcoming. Rather, it is simply a courteous disposition of a request from Congress, of the sort that federal agencies make on a regular basis.
The letter also appears to tacitly criticize Committee Republicans. “Professionalism, integrity, and public confidence in the Department’s work is critical for us, and no priority is higher,” it reads, signaling that career officials would not relent to political pressure emanating from Congress.
Sessions’ involvement with this matter is especially important. The attorney general has repeatedly promised to recuse himself from any matter involving Russian interference in the 2016 presidential election. Were he and other DOJ officials preparing to move forward with an inquiry respecting Comey or the infamous Uranium One deal, he would appear to be in violation of his duty to recuse, which would create serious political and administrative problems for the AG.
Department veterans and legal scholars who frequently comment on DOJ process also found the letter fairly benign, and suggested there would be little by way of further developments.
Reading the actual letter (which is _not_ from Sessions), I just don’t see where the hyperbolic headlines about Sessions considering a second Special Counsel are coming from.
This strikes me, instead, as a fairly even-keeled response to a one-sided request from the Hill… https://t.co/L1c0DD5Ww4
— Steve Vladeck (@steve_vladeck) November 14, 2017
I actually read this to say: "No way, no how: We're playing it by the book."
— Marty Lederman (@marty_lederman) November 14, 2017
Several members of the Committee appeared to agree with these assessments. GOP Rep. Jim Jordan of Ohio, clearly frustrated by the letter, grilled Sessions as to what evidence would prompt the appointment of a special counsel.
Boyd did not indicate when a determination will be reached by career prosecutors, or when Congress might be updated about their progress.