By Susan Jones | November 3, 2016 | 6:46 AM EDT
November 2, 2016
VIA ELECTRONIC TRANSMISSION
The Honorable Michael E. Horowitz
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530
Dear Inspector General Horowitz:
The public’s lack of confidence in the Justice Department’s ability to handle investigations related to former Secretary of State Hillary Clinton impartially ought to be of grave concern for its leadership. The entire matter is in desperate need of independent, objective, non-partisan oversight. As the Inspector General, that is your statutory duty.
The Department has utterly failed to manage the significant appearances of conflicts of interest. The leadership of the Department has stuck their heads in the sand, assuming that their reputations and silence would be enough to insulate them. The American people are all too aware of the troubling meeting between Attorney General Lynch and former President Bill Clinton on the tarmac of a Phoenix airport and the Justice Department’s acceptance of the FBI’s recommendation not to prosecute a little over a week later.
However, the potential conflicts are much deeper and broader than that one meeting.
Attached please find two previous letters that I sent to the FBI relating to Attorney General Lynch’s potential conflicts and the FBI’s second in command, Andrew McCabe and his potential conflicts related to Clinton fundraiser, Gov. Terry McAuliffe. Additionally recent reports have also illustrated long running, close ties between Peter Kadzik and the Clinton’s inner circle.
It is vital that the American people have confidence in the ability of the Department to be impartial with regard to criminal inquiries related to senior officials and candidates for high office. Yet, the Justice Department has failed to appoint a special counsel to ensure that these inquiries are insulated from the appearance that decisions are being made based on political considerations rather than on the merits.
Attorney General Lynch has professional associations with the Clintons that created the appearance of a conflict long before her meeting on an airplane with the former President. President Clinton appointed her to be the U.S. Attorney for the Eastern District of New York. She was a partner at a law firm that represented both President and Secretary Clinton. In addition, reports around the time of Attorney General Lynch’s meeting with President Clinton indicate that Secretary Clinton was considering keeping her on as Attorney General. Executive Order 12674 demands that “[e]mployees shall endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standard promulgating pursuant to this order.”
As the senior official in the Office of Legislative Affairs, Mr. Kadzik is being allowed to participate in decisions about what information on these matters will be disclosed to Congressional oversight committees. Reports have noted that Mr. Kadzik continues a very close relationship with John Podesta, the Chairman of Secretary Clinton’s presidential campaign. For instance, news reports have noted:
• Mr. Kadzik represented Mr. Podesta during the Monica Lewinsky investigation.
• Mr. Kadzik lobbied Mr. Podesta for then-President Bill Clinton to pardon Marc Rich. On this point, the House Committee on Government Reform found that Mr. Kadzik was hired by Marc Rich because of his connections with Mr. Podesta.
• Mr. Podesta emailed Obama campaign officials to recommend Mr. Kadzik for a role in the Obama campaign and called Mr. Kadzik a “fantastic lawyer” that “kept me out of jail.”
• Mr. Kadzik met with Mr. Podesta for dinner one day after Secretary Clinton’s Benghazi testimony. Mr. Kadzik also met at Mr. Podesta’s home for dinner on January 13, 2016. During both times the FBI was still investigating Secretary Clinton.
• On May 5, 2015, Mr. Kadzik’s son asked Mr. Podesta for a job on the Clinton campaign.
• On May 19, 2015, Mr. Kadzik emailed Mr. Podesta and warned, “[t]here is a HJC oversight hearing today where the head of our Civil Division will testify. Likely to get questions on State Department emails. Another filing in the FOIA case went in last night or will go in this am that indicates it will be awhile (2016) before the State Department posts the emails.”
Given these facts, Mr. Kadzik’s relationship with the Clintons and their associates is incompatible with the ability of Congress to have any confidence in his ability to be fair and impartial in advising on decisions about how to respond to Congressional oversight inquiries related to these matters.
At the FBI, Mr. McCabe’s wife accepted more than half a million dollars from entities associated with Gov. Terry McAuliffe for her political campaign. Given Gov. McAuliffe’s ties to the Clintons and the control Mr. McCabe later exerted over the Clinton investigation, some have suggested that there is at least the appearance of a conflict. All government employees must avoid situations that create the appearance of impropriety. Specifically, 5 C.F.R. § 2635.502, advises that a government employee should seek clearance before participating in any matter that could cause his or her impartiality to be questioned.
Against the backdrop of these apparent conflicts, the public has also learned that the Justice Department entered into unusual immunity agreements with all of Secretary Clinton’s close associates. These immunity agreements inexplicably limited the scope in which the FBI could review relevant emails. For example, the immunity agreements between Cheryl Mills and Heather Samuelson only permitted the FBI to review email archives from Platte River Networks created after June 1, 2014, and before February 1, 2015, that included emails sent or received from Secretary Clinton’s four email addresses during her tenure as Secretary of State. That limitation in scope would have excluded any emails from Cheryl Mills to Paul Combetta in late 2014 or early 2015 touching on the destruction or concealment of federal records being sought by Congress. Further, the scope would preclude the FBI from reviewing any of Secretary Clinton’s emails if they were not from the four listed in the agreement. Finally, the agreements included an inexplicable agreement to destroy laptops that contained records subject to congressional subpoenas and preservation letters.
These unusual limitations, coupled with the sheer number of immunity agreements, without any charges being filed, seems to indicate that the Justice Department likely refused to authorize any compulsory process, such as search warrants or grand jury subpoenas. Not until October 30, 2016, did the first reports surface that the Justice Department obtained a warrant to search the laptop associated with Huma Abedin and Anthony Weiner in the context of the FBI’s investigation into Secretary Clinton. That appears to be the first compulsory process authorized in the matter, and it appears to have been authorized only after the FBI Director informed Congress of the need to obtain the information.
In addition, the public now knows that the investigation’s scope was arbitrarily limited to classifications issues, with little or no effort to make a case against anyone for intentionally alienating federal records to subvert the Freedom of Information Act process and potentially obstruct Congress.
In light of all of this, an independent, objective, non-partisan review is vital. The American people deserve to know whether political considerations have improperly affected the handling of this inquiry and understand why key officials failed to recuse themselves to protect the public’s confidence in a fair and impartial inquiry based on merits and the evidence rather than on politics.
Accordingly, please conduct a review sufficient to answer the following questions:
1. In light of Attorney General Lynch’s previous history with the Clintons, does her involvement in the Clinton investigation create, at the minimum, the appearance of a conflict of interest? If not, why not?
2. In light of Mr. Kadzik’s previous history with the Clintons, does his involvement in the Clinton investigation create, at the minimum, the appearance of a conflict of interest? If not, why not?
3. In light of Mr. McCabe’s wife’s relationship with a close ally of the Clintons, does his later involvement in the Clinton investigation create, at the minimum, the appearance of a conflict of interest? If not, why not?
4. When individuals such as Attorney General Lynch, Mr. Kadzik, and Mr. McCabe fail to recuse themselves for prudential reasons to avoid the appearance of a conflict, what policies and procedures exist to protect the Department from the consequences of those individual decisions and how can they be improved?
5. Prior to Director Comey’s October 28, 2016 letter to Congress did the FBI ever seek from the Justice Department any compulsory process in the Clinton email investigation? If so, please describe each request and note which requests were denied by the Department. For those that were denied, what were the reasons given for the denial?
6. In what ways, for what reasons, and by whose decision was the scope of the FBI’s investigation and prosecutorial recommendation narrowed to only national security matters, with relatively little time or attention devoted to determining whether there were criminal violations for intentional alienation of federal records, perjury, or obstruction of Congress?
7. Why were the searches of the laptops of Clinton aides Cheryl Mills and Heather Samuelson limited to the timeframe that Secretary Clinton was in office, excluding potential evidence about the intent behind decisions to delete emails after Secretary Clinton was out of office even though they were subject to Congressional subpoenas?
I anticipate that your written reply and any responsive documents will be unclassified. Please send all unclassified material directly to the Committee. In keeping with the requirements of Executive Order 13526, if any of the responsive documents do contain classified information, please segregate all unclassified material within the classified documents, provide all unclassified information directly to the Committee, and provide a classified addendum to the Office of Senate Security. Although the Committee complies with all laws and regulations governing the handling of classified information, it is not bound, absent its prior agreement, by any handling restrictions or instructions on unclassified information unilaterally asserted by the Executive Branch.
Thank you in advance for your cooperation with this request. Please respond no later than November 7, 2016. If you have questions, contact Josh Flynn-Brown of my Committee staff at (202) 224-5225.
Charles E. Grassley
Committee on the Judiciary
Thank You Ms Jones, CNS, and Senator Grassley.
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