Readers of the New York Times may have been shocked to read their report on the Trump-era Department of Justice’s secret search warrants on communications of members of Congress. Friends and colleagues of federal prosecutor Osmar Benvenuto were even more shocked to find him characterized as a “crony” of then-AG William Barr. The New Jersey Democrat got tapped for the job over his own misgivings, not because he knew Barr but because Barr had been told that Benvenuto was a tough, action-oriented independent thinker within the DoJ.
This recasting of Benvenuto’s background by Politico’s Josh Gerstein puts an entirely different light on Barr’s actions last year:
Associates said Osmar Benvenuto, 39, had misgivings about taking the assignment because he feared he might be seen as tarnished by the work given the perceived politicization of the Justice Department under Attorney General William Barr, but the New Jersey-based career prosecutor ultimately decided to accept the job after friends counseled him to do so.
Several of Benvenuto’s friends and mentors said they found it utterly implausible that he would have taken on a political mission for the Trump administration. For one thing, Benvenuto is registered to vote in New Jersey as a Democrat and previously registered as a Democrat in New York City.
At least two of Benvenuto’s friends spoke on the record to Gerstein about their shock at the way the NYT story characterized him. One called the effort to cast Benvenuto as a Barr “stooge … just outrageous.” Paul Fishman, who hired Benvenuto into the Obama-era DoJ in 2012, told Gerstein he didn’t ask about Benvenuto’s politics at that time. However, Fishman said he’d have been surprised to see any sympathy toward the Trump administration from Benvenuto, considering the conversations they had since that point.
The man who proposed Benvenuto for this particular mission also objected to the characterization. Barr didn’t personally know Benvenuto at the time, let alone have any “inner circle” status with the Attorney General:
Former U.S. Attorney Craig Carpenito confirmed that he offered up Benvenuto after Barr reached out seeking a seasoned prosecutor to handle unspecified cases at headquarters that had been lingering for a while without resolution.
“The attorney general told me that he wanted someone who was an experienced prosecutor and wasn’t afraid to make decisions. What he wanted to know was whether or not there was anything to these investigations, whether they should be closed or brought forward,” Carpenito said in an interview. “I told him Oz Benvenuto was someone I trusted to give him an honest answer and he has the experience to separate the wheat from the chaff. … I also told him Oz had the intestinal fortitude to give him a real answer: He would say, ‘yes or no.’”
This took place last year, and the context seems pretty clear. Not only was Trump at risk of being a one-term president, Barr had apparently decided to leave no matter what. He wanted to tie up as many of these loose ends as possible before leaving the DoJ. He needed prosecutors who had enough guts to issue a go/no-go call and asked for outsiders to provide those for Barr before the AG left. Far from looking for cronies to deliver a cooked response for Trump, Barr appears to have decided to get independent conclusions and let chips fall where they may.
The New York Times’ spin on Barr turns out to be significantly inaccurate with this information in mind, although the Washington Post appears to have avoided that trap a bit more. However, there were a lot of chips to let fall, according to CNN, which underscores the significance of the investigation reported by the NYT:
The Department of Justice sent a broad request in February 2018 to Apple as part of its investigation that collected data on members of Congress, staffers and their families. The department demanded metadata on 73 phone numbers and 36 email addresses from Apple, the company said Friday evening.
Apple received the subpoena from the Justice Department on Feb. 6, 2018, but it contained no information about who the investigation was targeting or why, the company said. Apple also said determining who the targeted accounts belonged to would have required extensive research.
People have multiple e-mails and phone numbers, but clearly this involved more than just Adam Schiff and Eric Swalwell. It also involved more than Apple, but to a much lesser extent:
“In 2017 Microsoft received a subpoena related to a personal email account,” the statement said. “As we’ve said before, we believe customers have a constitutional right to know when the government requests their email or documents, and we have a right to tell them. In this case, we were prevented from notifying the customer for more than two years because of a gag order. As soon as the gag order expired, we notified the customer who told us they were a congressional staffer. We then provided a briefing to the representative’s staff following that notice. We will continue to aggressively seek reform that imposes reasonable limits on government secrecy in cases like this.”
So how problematic was this? Sen. Chuck Grassley (R-IA) shrugged it off yesterday as “nothing new,” saying that leak investigations regularly involve members and staffers on Capitol Hill. Paul Mirengoff is less sanguine at Power Line but reminds readers, as I did yesterday, that it’s possible that prosecutors had enough evidence to meet a reasonable-suspicion threshold — and that a judge at least thought they had at the time:
It depends on whether there was a sufficient evidentiary basis for the subpoenas. We know that a judge signed off on them, but experience teaches that this fact is inconclusive.
We also know, thanks to Chuck Ross of the Washington Free Beacon, that none other than Peter Strzok, then the top FBI investigator in the inquiry into Russian interference in the 2016 election, sent text messages to colleagues in March 2017 speculating that Democrats from the House Intelligence Committee and on the so-called Gang of Eight were behind media leaks. Strzok’s speculation isn’t conclusive either, but it suggests that the DOJ might not have been wrong to want to investigate some of these folks.
Finally, we know that neither Schiff nor Swalwell was ever charged by the DOJ. But that fact, too, is inconclusive on the question of whether there was sufficient cause to investigate them. It’s not even conclusive on the question of whether, more likely than not, the two were leaking unlawfully.
In other words, stay tuned and wait for the investigation of the investigation. In the meantime, don’t take the NYT spin at face value.