The White House’s admission that it asked the Federal Bureau of Investigation to publicly dispute stories in the New York Times describing contacts between the Trump campaign and Russian officials raises serious ethical questions, according to former Justice Department officials.
"It's quite inappropriate for anyone from the White House to have a contact with the FBI about a pending criminal investigation, that has been an established rule of the road, probably since Watergate," said Michael Bromwich, a former Department of Justice inspector general and director of the Bureau of Ocean Energy Management under Obama. "When I was in the Department in the ‘90s, that was well understood to be an inviolable rule."
CNN reported on Thursday that the FBI had rejected a request from White House Chief of Staff Reince Priebus to “publicly knock down media reports about communications between Donald Trump's associates and Russians known to US intelligence during the 2016 presidential campaign.” That communication would appear to violate ethical guidelines in place in one form or another since the Watergate Scandal, which led to the resignation of President Richard Nixon over his role in the coverup of the burglary of Democratic National Committee headquarters by Nixon operatives. Nixon had sought to block the FBI’s investigation into the break-in.
According to the latest version of those standards, issued in 2009 by then-Attorney General Eric Holder, “the Justice Department will advise the White House concerning pending or contemplated criminal or civil investigations or cases when-but only when-it is important for the performance of the President's duties and appropriate from a law enforcement perspective.”
There is an exception for when officials in public-affairs offices must communicate to, for example, prepare for an announcement in a big case: “This policy does not, however, prevent officials in the communications, public affairs, or press offices of the White House and the Department of Justice from communicating with each other to coordinate efforts.”
That exception would not appear to apply to a conversation between Priebus, the White House chief of staff, and Andrew McCabe, the FBI’s deputy director––or to a conversation touching on the substance of an investigation.
"The policy channels these communications through the White House counsel's office, which is the appropriate place, the White House counsel is a lawyer and knows how to handle these communications without interfering with ongoing investigations," said Amy Jeffress, a former counselor to the attorney general for national security and international matters. "It's important for the Department of Justice to be able to conduct investigations without political interference."
White House officials claim it was the FBI which first approached them on the matter. According to the Associated Press, “White House officials said it was the FBI that first raised concerns about the Times reporting but told Priebus the bureau could not weigh in publicly on the matter. The officials said McCabe and Comey instead gave Priebus the go-ahead to discredit the story publicly, something the FBI has not confirmed.” But that account raises further questions.
Responding to questions from the press on Friday, White House Press Secretary Sean Spicer confirmed the contacts on the record.
“We literally responded to what they came to us with and said, ‘OK, what are you going to do about it?” said Spicer. “Had we not done anything and just sat there, it would have been irresponsible and frankly malpractice.”
Bromwich said there was little doubt that the communications described by the White House in a briefing to reporters Friday morning constituted “inappropriate contact.”
"You don't want to have any political influence of any kind, any high level political influence, on any potential criminal investigation," said Bromwich. "It's inappropriate contact, and the reason those contacts are prohibited is because there is a risk of influence, or at a minimum, the risk of the appearance of influence, and so they are improper. There's really no gray area on this."
The administration’s account of the exchange also raises questions about the FBI’s conduct, because the White House claims that it was the FBI that raised the issue of The New York Times story. Speaking to The Guardian, former FBI Agent Mike German said that “It is illegal for an FBI employee to take information from an ongoing criminal investigation and share it with a potential witness or subject of that investigation. Obviously, if the justice department ultimately initiates a prosecution in this matter, this purported conversation would be exculpating evidence.”
In late October, FBI Director James Comey announced publicly that the bureau was looking into potentially new emails related to an investigation into Democratic presidential nominee Hillary Clinton. That search turned out to be fruitless, but the revelations, coming at the tail end of the presidential campaign, are widely believed to have affected the outcome of the 2016 election. The FBI’s conduct in that incident is currently under investigation by the FBI’s inspector general. Comey’s announcement also may have violated FBI guidelines against public disclosures that could impact a candidate close to an election.
"Just as it's inappropriate for anyone in the White House to reach out to the FBI comment on a pending criminal investigation, it's similarly inappropriate for anyone in the FBI to reach out to the White House to comment on a pending criminal investigation," said Bromwich. He added however, that there were reasons to doubt the administration’s account of events.
“The FBI knows the rules and is being circumspect and not commenting, the White House knows the FBI will be circumspect and not commenting, so theirs is the only story out there," Browmwich said. "I would be surprised that a top FBI official would broach a conversation of this sort."