Since Donald Trump first stirred crowds on the 2016 campaign trail with calls to “lock up” Hillary Clinton, legal observers have been warning about the dangers of politicizing the U.S. justice system.
Those fears grew more urgent late last week with the news that the Justice Department has reopened its investigation into allegations of pay-for-play at the Clinton Foundation, and is also taking a fresh look at the private email server Clinton used as secretary of state. In addition, two influential Republican senators recommended charges against the author of a dossier alleging ties between Russia and the Trump campaign.
There’s no evidence that the White House had a direct hand in any of those actions. But the news comes after frequent calls by Trump for further scrutiny of all three issues, including demanding jail time both for Clinton and for Huma Abedin, a top Clinton aide ensnared in the email probe. Trump already has appeared to pressure Attorney General Jeff Sessions to act in the president’s political interest, frequently attacking the AG for failing to protect Trump from special counsel Robert Mueller’s investigation into potential Russian collusion.
Taken together, the developments suggest a concerted effort by the Trump administration and its allies to push back against Mueller’s intensifying probe, by marshaling the full power of the federal government against the president’s political opponents. That poses a direct threat to the independence and impartiality of the justice system, former DOJ officials told TPM.
“The fact that the White House has been screaming about the need to investigate these matters undermines the credible belief that this is the result of independent new evidence that’s come somehow to the DOJ’s notice, and not political pressure,” Michael Zeldin, a former federal prosecutor who worked closely with Mueller in DOJ’s criminal division, said in reference to the Clinton Foundation and email inquiries.
Some go further, linking last week’s developments with other steps by the Trump administration that seem to undermine the nation’s commitment to democracy and the rule of law. Ken McCallion, a former federal prosecutor and vocal critic of Trump’s ties to Russia, who as a defense lawyer has represented foreign political leaders targeted by authoritarian governments, called the situation “frightening.”
“If we are slowly sliding from a fully democratic country to a more totalitarian, pseudo-democratic one,” said McCallion, “one of the signs of that will be politicization of the decisions of the judicial process.”
The news of the revived Clinton Foundation investigation, which is said to be looking into whether Clinton traded donations to the charity for political favors while serving as secretary of state, has triggered perhaps the most alarm. That’s in part because it was first reported by The Hill’s John Solomon, who has been digging into the foundation for over a decade and whose work has frequently pleased conservatives.
More important, the foundation has already been thoroughly investigated. The federal probe was originally launched in 2015, reportedly in response to allegations leveled in a book by the conservative author Peter Schweizer, Clinton Cash, a project that was backed by Steve Bannon. The inquiry went quiet in 2016 to avoid influencing the presidential race and resumed “about a year ago,” according to the Washington Post.
Exactly why the investigation was revived isn’t clear. Investigators in the Little Rock field office, where the charity has offices, are reportedly taking the lead.
No evidence has emerged at any point to indicate that the foundation’s donors received anything of value in return for their donations. Indeed, Clinton Cash’s most sensational claim, that Clinton helped a foundation donor win mining rights in Kazakhstan, have been convincingly debunked.
Peter Zeidenberg, a former U.S. attorney for the District of Columbia, said that without new, credible evidence of wrongdoing, the move to resuscitate the probe “smacks of pure political partisanship,” calling it “really troubling.”
The same day that news of the revived foundation probe emerged, the Daily Beast reported that DOJ also is looking into how Clinton and her aides handled classified material that passed through her private email server. That comes as the five-year statute of limitations for any potential federal felonies committed by Clinton, who left office in early 2013, draws near.
Clinton’s handling of classified information, like the foundation’s dealings with donors, has been exhaustively investigated. James Comey, then the FBI director, announced in July 2016 that a thorough probe had turned up no evidence of criminal wrongdoing. Then, shortly before that year’s election, Comey said the bureau had obtained new evidence in the form of emails on Abedin’s computer. That highly unorthodox disclosure appears to have prompted a significant decline in Clinton’s support at a crucial moment. But Comey later said that those emails did not change the bureau’s assessment.
Ziedenberg called the renewed focus on Clinton’s emails “preposterous.”
“Maybe this is being done for legitimate reasons but for appearance’s sake, it stinks,” Zeidenberg said. “The appearances are awful. The optics are horrible.”
The FBI’s hierarchical nature means that if an investigation originated from the top down, it would be difficult for agents to resist it, a former Obama Justice Department lawyer told TPM.
“You’re going to get people who will follow orders and be angry about it: ‘Okay I’ll investigate this and it’s stupid and it’s a waste of my time and I’ll do it,’” the person said.
“Because it’s a hierarchical organization there’s nobody to say, ‘Oh, I’m sorry, Mr. Attorney General, your judgment is political and I’m shutting this down.’”
A Justice Department spokeswoman declined to comment to TPM on the record about the Clinton Foundation and email inquiries.
It’s not only the Justice Department that’s being accused of improperly going to bat for the president. On Friday, in the first criminal referral related to Congress’s Russia investigation, Senators Chuck Grassley (R-IA) and Lindsey Graham (R-SC), both members of the Judiciary Committee, announced that they believed Christopher Steele, a British spy who authored a dossier documenting allegedly improper contacts between the Trump campaign and Russia, had lied to federal authorities about his contacts with reporters. The senators referred the case to the Justice Department for potential prosecution.
Both Grassley and Graham have lately seemed eager to defend the administration in connection with the Russia investigation. Graham has called for a new special counsel to probe alleged anti-Trump bias in the DOJ and FBI.
Democrats on the committee have expressed frustration at not being consulted. McCallion said he couldn’t remember such a referral being made on a partisan basis in his career.
The referrals came after Trump allies spent months attacking the dossier as unreliable and politically motivated, and arguing that its flaws undermine the entire Russia investigation. The president himself has called it “bogus” and lamented that it’s been used “as the basis for going after the Trump campaign.”
In fact, the dossier appears to have played little role in the decision to open the probe, and the FBI appears to believe its findings are credible.
Zeldin said it “doesn’t sit well” that months of witness interviews and the review of tens of thousands of pages of documents by the judiciary committee ended with what he said was essentially a “leak investigation.”
“You’d think if this was a serious concern as opposed to a political distraction, they would’ve made the referral without a public disclosure so as not to interfere with the FBI’s investigative efforts,” Zeldin added.
Sam Thielman contributed reporting.