On September 28, the Senate Judiciary Committee approved on a party line vote the nomination of Brian Benczkowski to be the head of the Justice Department’s criminal division. The vote put President Donald Trump one step closer to installing a potential mole at the department, with the ability to inform him of any wiretaps or significant developments in special counsel Robert Mueller’s grand jury investigation into the possible ties between Russia and the Trump campaign.
During the committee hearing, Democrats cited a number of reasons to oppose Benczkowski, who was a top aide to Attorney General Jeff Sessions when the former senator ran the Judiciary Committee. Senator Dianne Feinstein noted that Benczkowski, a partner at the firm Kirkland & Ellis, has no prosecutorial experience and almost no experience in a courtroom. Senator Dick Durbin and others argued that he showed “really poor judgment” when he chose to represent Alfa Bank, which has been implicated in the Russia scandal, between his stint on Trump’s transition team and his June nomination to be assistant attorney general. (Alfa Bank came under suspicion after it was discovered that one of its servers had communicated with a server tied to the Trump Organization.)
Senator Sheldon Whitehouse raised a more specific concern: that Benczkowski might serve as “a back channel source of information” from Mueller’s special counsel investigation to Sessions, who has recused himself from the case. Whitehouse and others fear that having Benczkowski as the head of the criminal division could effectively breach the recusal. But there may be a still bigger risk: Benczkowski could share information about wiretaps and proceedings from the grand jury directly with the president.
The cause for concern comes from an old Department of Justice interpretation of the PATRIOT Act. Along with expanding surveillance authorities, the PATRIOT Act permitted any government lawyer to share national security-related grand jury or wiretap information with any government official as long as it would help them perform their job better. The measure was passed in response to the September 11 attacks, with an eye to sharing counterterrorism information more broadly. But the authorization of such sharing explicitly extended to “clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of foreign power”—precisely the kind of nation-state spying at the heart of the Russian investigation.
A July 22, 2002, memo from the Justice Department’s Office of Legal Counsel, written by Jay Bybee, the author of the infamous torture memos, held that, under the statute, the president could get grand jury information without the usual notice to the district court. It also found that the president could delegate such sharing without requiring a written order that would memorialize the delegation.
Bybee’s memo relies on and reaffirms several earlier memos. It specifically approves two rationales for sharing grand jury information with the president that would be applicable to the Russian investigation. A 1997 memo imagined that the president might get grand jury information “in a case where the integrity or loyalty of a presidential appointee holding an important and sensitive post was implicated by the grand jury investigation.” And a 2000 memo imagined that the president might need to “obtain grand jury information relevant to the exercise of his pardon authority.”
If you set aside Trump’s own role in obstructing the investigation—including the firing of former FBI Director James Comey—these rationales are defensible in certain cases. In fact, the Justice Department has already shared information (though not from a grand jury) with the White House for one of these very reasons. In January, acting Attorney General Sally Yates warned White House Counsel Don McGahn that Russians might be able to blackmail then-National Security Advisor Mike Flynn. As Yates explained in her congressional testimony in May, after Flynn’s interview with the FBI, “We felt that it was important to get this information to the White House as quickly as possible.” She shared it so the White House could consider firing Flynn: “I remember that Mr. McGahn asked me whether or not General Flynn should be fired, and I told him that that really wasn’t our call, that was up to them, but that we were giving them this information so that they could take action.”
A similar situation might occur now that the investigation has moved to a grand jury investigation, if someone remaining in the White House—the most likely candidate is the president’s son-in-law, Jared Kushner—were found to be compromised by Russian intelligence. In Kushner’s case, there are clear hints that he has been compromised, such as when he asked to set up a back channel with the Russians during the transition.
If Trump were to rely on the memo, he might order a Justice Department lawyer to tell him what evidence Mueller had against Kushner, or whether Mike Flynn or former campaign manager Paul Manafort were preparing to cooperate with Mueller’s prosecutors if they didn’t get an immediate pardon. Unlike Yates, Trump would have an incentive to use such information to undercut the investigation into Russia’s meddling.
The special counsel’s office declined to comment for this article.
The 2002 memo generally supports the notion that the attorney general should decide whether the president needs to see a particular piece of information. But it also envisions the possibility that lawyers further down the hierarchy might make that decision—including the position Benczkowski has been nominated to fill. “An attorney for the government may include [in addition to the people actually prosecuting a case] other federal officials within the Department of Justice who gain access to the information under Rule 6(e)(3)(A)(i) in the performance of their law enforcement duties (e.g., the Assistant Attorney General of the Criminal Division …)”
Furthermore, it asserts that the president may delegate the authority for deciding what grand jury information he might need to know to someone besides the attorney general. And the memo cites an old opinion from the Iran-Contra scandal to argue that the president doesn’t have to memorialize any such delegations in writing. “Such a directive may be set forth in a formal executive order, in a less formal presidential memorandum, … or pursuant to an oral instruction from the President to the Attorney General or other appropriate officials.” So Trump could order someone to share information without leaving a paper trail.
The risk that Trump might use this memo to spy on Mueller’s investigation has always existed. But it was limited because the Justice Department lawyers with visibility into the investigation—notably Deputy Attorney General Rod Rosenstein and acting national security division head Dana Boente—are career prosecutors unlikely to share such information. While Benczkowski did hold a series of senior positions at Justice during the George W. Bush administration, he is fundamentally a political appointee who even worked in the Trump transition team.
The Democrats on the Senate Judiciary Committee all seemed to expect that Benczkowski, in the normal course of affairs, would be consulted in matters affecting Mueller’s investigation. Senator Patrick Leahy scoffed at the September hearing, “There is no way in God’s green earth that if Mr. Mueller is coming up with prosecutions into the Russian hacking, or into even the banks or anything else, that the Justice Department’s not also gonna look at that to make sure, ‘Are there other things we need to be prosecuting?’”
Benczkowski’s close ties to Sessions and his involvement in the transition should be enough to require his recusal from all matters involved in this investigation. That’s before you factor in the possibility that Alfa Bank may play a role in the probe. Still, as Feinstein noted in the hearing, Benczkowski has refused to pledge to recuse himself from the Russian investigation on three different occasions during his confirmation process. Beyond his work for Alfa Bank, Benczkowski said, “the ethics rules do not require a recusal in those circumstances.”
Benczkowski has promised an ethical approach. “If I am confirmed and a matter comes before me in the criminal division where I believe recusal might be warranted,” Benczkowski explained, “I will review the law and the specific facts, consult with career ethics officials at the department, and recuse myself from any matter where such a recusal is appropriate.”
Benczkowski also promised to adhere to rules, written while he worked with the Bush-era Attorney General Michael Mukasey, limiting contact between the White House and the Department of Justice. “I understand those rules, and I will abide by them,” he said in his July confirmation hearing, “largely because I helped write them and I’ve helped enforce them.”
However, despite these statements, Benczkowski’s nomination remains a risk, partly because there is a lot of murkiness surrounding recusals in the first place. Despite three requests from Whitehouse and Senator Lindsey Graham, the Justice Department still refuses to explain the details of Sessions’s own recusal and to specify who else has access to the investigation. “I have asked Deputy Attorney General Rosenstein repeatedly to explain who at the Department of Justice has access to special counsel Mueller’s investigation,” Senator Whitehouse said in statement. “The only response I’ve received is that the special counsel ‘communicates directly with relevant Department components in the exercise of its responsibilities.’”
None of these concerns have slowed Benczkowski’s path to the Justice Department, where he could very well serve as Trump’s grand jury mole if he is confirmed by the full Senate. Even the Republicans on the Justice Committee most sincerely concerned about the integrity of the Russian investigation, like Graham, voted to support Benczkowski’s confirmation.
Which is why, at the very least, the Justice Department has to finally explain how it is ensuring the independence of Mueller’s investigation. “We must understand what boundaries protect Mr. Benczkowski from becoming a backchannel source on the special counsel investigation to the recused attorney general or the White House,” Whitehouse insisted. “So far, we have not and that is very troubling.”