Pressure builds on Sessions for second special counsel

Attorney General Jeff Sessions is under mounting pressure from the right to appoint a second special counsel to investigate conservative allegations of abuse at the Department of Justice (DOJ) and the FBI. 

Up to now, those calls have gone quietly unanswered, with officials pointing to the existence of a Justice Department inspector general investigation that is expected to wrap up sometime this spring.

But Sessions last week revealed that he has tapped a former official outside of the Beltway “with many years in the Department of Justice” to review the need for a special counsel, suggesting the idea is receiving a serious look. 

Powerful GOP lawmakers are urging Sessions to pull the trigger, arguing the inspector general does not have the prosecutorial authority needed to conduct a full investigation of the FBI’s actions.

Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) and Sen. Lindsey Graham (R-S.C.) on Thursday sent a letter to Sessions and Deputy Attorney General Rod Rosenstein calling for a special counsel to “gather all the facts.”

“The FBI and the Department of Justice were corrupt, in my view, when it came to handling the email investigation of [Hillary] Clinton. And the entire FISA [Foreign Intelligence Surveillance Act] warrant application process was abused,” Graham told Fox News’s Bret Baier, referring to a surveillance authority conservatives believe was misused during the 2016 campaign to launch the Russia investigation.

Last week, two powerful House GOP chairmen — Judiciary Committee Chairman Bob Goodlatte (Va.) and Oversight and Government Reform Committee Chairman Trey Gowdy (S.C.) — made a similar request, demanding a review of any evidence of “bias” by DOJ or FBI employee as well as whether there was any “extraneous influence” on the surveillance process. {mosads}

Critics of the GOP push say the allegations of bias and abuse are a transparent effort to undermine special counsel Robert Mueller’s investigation into the Trump campaign and Russia.

If Sessions’s review does not result in the appointment of a second special counsel, there’s growing speculation that it could be his own head on the chopping block. President Trump has repeatedly criticized his attorney general since Sessions recused himself from the Russia investigation last year, and has hammered him for deferring to Inspector General Michael Horowitz.

“Why is A.G. Jeff Sessions asking the Inspector General to investigate potentially massive FISA abuse,” Trump tweeted after Sessions announced Horowitz would be probing the allegations. “Will take forever, has no prosecutorial power and already late with reports on [former FBI Director James] Comey etc. Isn’t the I.G. an Obama guy? Why not use Justice Department lawyers? DISGRACEFUL!”

Sessions late Friday made one move that could help temper conservative criticism, as he fired FBI Deputy Director Andrew McCabe, long a target on the right, over alleged misconduct. McCabe had been set to retire on Sunday with a full pension.

But critics of the FBI’s handling of the Clinton investigation are likely to see McCabe’s firing — which was made after investigators found he made an unauthorized disclosure to the media and “lacked candor” under oath — as further evidence of the need for a special counsel.

Jay Sekulow, a member of Trump’s personal legal team contesting the Russia investigation, has publicly made the case for Sessions to make such an appointment.

“The special counsel has a deeper ability to talk to witnesses outside of the existing Department of Justice personnel, which is one of the limitations imposed on an inspector general,” Sekulow told Fox News’s Sean Hannity last week.

The crux of the allegations leveled by conservatives is that Justice Department and FBI personnel made decisions during the 2016 election that were improperly influenced by bias against then-candidate Trump — in both the investigation into Clinton’s email server and the Russia probe.

GOP lawmakers, citing an investigation conducted by House Intelligence Committee Chairman Devin Nunes (R-Calif.), say that officials improperly used an unconfirmed dossier of opposition research into Trump to obtain a surveillance warrant for former campaign adviser Carter Page.

Officials did not adequately disclose the provenance of the information when they submitted their application to the clandestine court that approves surveillance requests, Republicans say.

A countermemo from Intelligence Committee Democrats, also based on the classified warrant application, revealed that officials told the court that the dossier was commissioned by someone who wanted to discredit Trump’s campaign. The information formed only a small part of the application and was corroborated with information from independent sources, the Democratic memo says.

For Republicans, those representations to the court were insufficient. The dossier was paid for in part by the Clinton campaign and the Democratic National Committee and GOP members have questioned why it was used at all. 

“Bias and animus can lead to criminality,” Gowdy said last week, as well as “making misrepresentations or failure to make adequate representations to a tribunal.”

“The manner by which information was secured from nongovernmental sources” could also run afoul of the law, he said.

The FBI frequently makes use of intelligence obtained from biased sources. As long as the information is verified and the agenda is disclosed to the court, former officials say, there is nothing improper about using it in a FISA application.

The Goodlatte-Gowdy request centers solely on FISA abuse. Goodlatte in the past has made a separate request for a second special counsel to investigate decisionmaking in the Clinton probe. 

Republicans have long been incensed that Clinton was not charged and have raised questions about former FBI Director James Comey’s decision to call her conduct “extremely careless” instead of “grossly negligent,” a potentially criminal standard.

Horowitz’s investigation has since expanded to encompass the allegations of surveillance abuse. Its original mandate was to probe decisionmaking in the Clinton probe, including Comey’s public announcement that the former secretary of State would not face charges.

The Grassley-Graham request also revolves around the bureau’s use of the so-called Steele dossier in its investigation into Trump and Russia.

Under Justice Department regulations, a few preconditions have to be met in order for a special counsel to be appointed. The attorney general must determine that a criminal investigation is warranted and that the Justice Department would have an obvious conflict of interest — and that it would be “in the public interest to appoint an outside special counsel to assume responsibility for the matter.”

Although Grassley and Graham have called for a special counsel to investigate decisionmaking only up to the May appointment of Mueller, such an appointment could throw a wrench in the current special counsel’s probe, some national security lawyers note.

“Permitting this second Special Counsel, even if it was justified under DOJ regulations (and it is not), would almost certainly disrupt and interfere with Mr. Mueller’s inquiry,” Bradley Moss said in an email to The Hill. 

Even if the new probe were truly limited to surveillance issues, Moss said, it would encompass investigative work done by Justice Department personnel who would undoubtedly have played a role in the work now being done by Mueller’s team.

“This would require Mueller’s lawyers to get involved to protect the integrity of their own investigation. Now, you have two Special Counsels fighting a bureaucratic turf war.”