Today, Rep. Bob Goodlatte, Chairman of the House Judiciary Committee and Rep. Trey Gowdy, Chairman of the House Oversight and Government Reform Committee, sent a letter Attorney General Sessions and Deputy AG Rod Rosenstein calling for the appointment of a second Special Counsel. This Special Counsel would be tasked with looking into potential bias and conflicts of interest in decisions made in 2016 and 2017. The letter reads, in part:
We believe that, in the case of certain decisions made and not made by the Department of Justice and FBI in 2016 and 2017, both an actual conflict of interest exists and separately, but equally significantly, the public interest requires the appointment of a Special Counsel.
With respect to potential and actual conflicts of interest, decisions made and not made by both former and current Department of Justice and FBI officials have led to legitimate questions and concerns from the people whom we all serve. There is evidence of bias, trending toward animus, among those charged with investigating serious cases. There is evidence political opposition research was used in court filings. There is evidence this political opposition research was neither vetted before it was used nor fully revealed to the relevant tribunal. Questions have arisen with the FISA process and these questions and concerns threaten to impugn both public and congressional confidence in significant counterintelligence program processes and those charged with overseeing and implementing these counterintelligence processes.
Because the decisions of both former and current Department of Justice and FBI officials are at issue, we do not believe the Department of Justice is capable of investigating and evaluating these fact patterns in a fashion likely to garner public confidence. In addition, while we have confidence in the Inspector General for the Department of Justice, the DOJ IG does not have the authority to investigate other governmental entities or former employees of the Department, the Bureau, or other agencies.
Some have been reluctant to call for the appointment of a Special Counsel because such an appointment should be reserved for those unusual cases where existing investigative and prosecutorial entities cannot adequately discharge those duties. We believe this is just such a case.
Accordingly, we request that you appoint a Special Counsel to review decisions made and not made by the Department of Justice and the FBI in 2016 and 2017, including but not limited to evidence of bias by any employee or agent of the DOJ, FBI, or other agencies involved in the investigation; the decisions to charge or not charge and whether those decisions were made consistent with the applicable facts, the applicable law, and traditional investigative and prosecutorial policies and procedures; and whether the FISA process employed in the fall of 2016 was appropriate and devoid of extraneous influence.
Clearly, FISA court abuse is the main focus of this call for an investigation. That’s everything connected with the Nunes memo and the subsequent Democratic memo which some have suggested helps the GOP case more than it helps Democrats looking to downplay it. But the letter also mentions decisions to charge and not charge. Could that be a reference to the very consequential decision not to charge Hillary Clinton for gross negligence in setting up her email system?
As we’ve since learned, an initial draft of Comey’s statement used the phrase “gross negligence” which matches the statute (18 USC 793) which applied in that case. However, that reference was later removed. Former FBI Director Comey later defended his decision not to charge Clinton saying no reasonable prosecutor would have brought charges under those circumstances. But Rep. Trey Gowdy disagreed with him when Comey testified before Congress, arguing that criminal intent is often established through circumstantial evidence, such as an effort to cover up the behavior. Here’s that exchange:
I’m speculating about what decisions the new Special Counsel might be authorized to look into (in addition to those surrounding the FISA court) but it does seem to me that the most noteworthy decision not to charge made by the FBI in 2016 was the one involving Hillary. And there are certainly issues of bias involved including former AG Lynch asking Comey to refer to it as “a matter” rather than an investigation.