White House staffers aren’t supposed to just call up the Justice Department or FBI and complain about a personal grievance. Yet that is exactly what newly-minted Communications Director Anthony Scaramucci claimed to have done during a combative Thursday morning CNN interview, disclosing that he had contacted Attorney General Jeff Sessions and various “buddies” in the FBI over his concerns about leaks coming from senior White House staff.
“You know why I like bringing up the Department of Justice and the FBI?” Scaramucci said. “Because people who’ve done something wrong, it makes ‘em nervous.”
These comments came hours after Scaramucci offered an expletive-filled rant to New Yorker reporter Ryan Lizza about how he believed his rival, Chief of Staff Reince Priebus, was behind the latest leak, and that he’d “called the FBI and the Department of Justice” about this “felony.”
Setting aside that his concerns were sparked by misplaced anger over reporting on his financial disclosure form, which is a publicly available document, the Scaramucci kerfuffle marked just the latest example of a member of the Trump administration attempting to use the Justice Department as something of a personal enforcement arm. President Donald Trump has been the most public face of this norm-shattering: the FBI director he fired, James Comey, testified that the President asked him to swear his loyalty and end a federal investigation into ousted national security adviser Michael Flynn.
Contacts like Scaramucci’s run up again longstanding, binding regulations that strictly limit contact between the White House and Justice Department. Since the Watergate era, each new attorney general and each White House general counsel has laid out an updated version of their contact policy, dictating that only senior members of each body may be in contact with each other about investigations, and even then only in very specific instances.
Kenneth Starr, the former independent counsel who led investigations into President Bill Clinton, laid out the importance of this division in a Thursday Washington Post op-ed.
“The attorney general is not—and cannot be—the president’s ‘hockey goalie,’ as new White House Communications Director Anthony Scaramucci described Sessions’s job,” Starr wrote. “In fact, the President isn’t even his client. To the contrary, the attorney general’s client is ultimately ‘We the People,’ and his fidelity has to be not to the president but to the Constitution and other laws of the United States.”
Thomas Perrelli, former associate U.S. attorney general under President Barack Obama, told TPM that communications with the White House would occur in cases where the DOJ was defending government policies or where there were national security implications.
“With respect to law enforcement matters, pending investigations, that pretty much never happened,” Perrelli said. “If the White House said ‘I would like to get briefed on what is going on with respect to x criminal investigation,’ the answer would be no.”
“It just does not occur in your normal criminal probe, and it also has to be appropriate from a law enforcement perspective so if you’re investigating people in the White House, it’s probably never appropriate,” Perrelli said. As Trump’s inner circle has made very clear, the administration does believe many of the most damning leaks about the President and his policies are coming from inside the White House itself.
Trump’s White House counsel, Don McGahn, laid out his own contact policy in a Jan. 27 memo. Sessions has not yet crafted one for his DOJ, meaning former Attorney General Eric Holder’s remains the binding standard.
The communications director is not on either list of individuals approved to contact law enforcement officials. Nor is there any mention of the FBI at all, as Allison Murphy, counsel at United to Protect Democracy, a government transparency organization, pointed out.
“Only the senior leadership of the DOJ are permitted to speak with only a few people at the White House when it comes to specific investigations or prosecutions,” Murphy noted. “And nobody at the FBI is included in that list.”
Asked about his potential violation of the contact policy during Thursday’s press briefing, Deputy Press Secretary Sarah Huckabee Sanders said only, “I’m not going to speak about conversations between cabinet members and other individuals that I wasn’t a part of and haven’t had a chance to talk to either individual about.”
The DOJ did not respond to TPM’s request for comment on the conversation Scaramucci said he had with Sessions, but issued a statement Wednesday night saying the agency planned to “aggressively purse leak cases wherever they may lead.”
“We agree with Anthony that these staggering number of leaks are undermining the ability of our government to function and to protect this country,” department spokeswoman Sarah Isgur Flores said in the statement.
Further complicating the contacts Scaramucci said he had with DOJ is that it appears he’s not even a formal member of the Trump White House yet. When he came onboard last week, he announced he would not formally assume his post until Aug. 15, pending the approval of the sale of his investment firm, SkyBridge Capital (Huckabee Sanders said Thursday she doesn’t believe he’s yet taken an oath of office). The Justice Department has a seat on the committee responsible for approving that deal, the Treasury Department-led Committee on Foreign Investments in the U.S.
There is also Sessions’ tenuous position, as Trump and his staffers have shellacked him in the press as insufficiently loyal and a “disappointment” because of his recusal from the Russia investigation.
Combined, these circumstances are ripe for abuses of power, Matthew Miller, a former director of the DOJ’s Office of Public Affairs under Obama, told TPM.
“You have Sessions probably feeling a little like he wants to curry favor with the President and he can do that by starting leak investigations, or by approving this sale that would put millions of dollars into Scaramucci’s pocket” and allow the communications director to fully move into his White House role, Miller said.
The DOJ has in recent days signaled that it plans to pursue an intensive criminal investigation of intelligence leaks, as the President has requested. Though the Obama administration also aggressively pursued leakers, this marks a radical break in how leak investigations are carried out. Instead of analyzing referrals from security agencies or pursuing specific leak probe requests based on their gravity and type, as Miller said had been the precedent, Trump’s DOJ appears to be embarking on a full-scale investigation into leaks of sensitive information to the press.
“The DOJ is not supposed to make assessments based on general complaints from the White House communications director,” Miller said, “but when you have an AG fighting for his job and unwilling to fight for the department’s independence, it brings all this into question.”