//  6/6/17  //  Commentary

By Allison Murphy, Counsel, Protect Democracy

Last month, President Trump fired FBI Director James Comey.  President Trump has stated that he did so because of the FBI investigation into Russian interference in the 2016 election and Trump’s campaign’s involvement with Russia.  Trump has stated that he had asked Comey about this specific investigation and confirmed communicating with Comey about it on several occasions in his letter firing Comey.  Also, in the first of those conversations, over dinner at the White House, President Trump reportedly asked Comey for his loyalty, though he later denied doing so.  In written memos held by the FBI, Comey memorialized those conversations in which President Trump may have sought to interfere in or obstruct specific investigations. 

Given President Trump’s documented and acknowledged efforts to interfere with the independence of the FBI, the Senate should presume that could continue under a new FBI Director.  It is therefore incumbent upon Senators to ensure that any Trump nominee for FBI Director commits to certain baseline aspects of independence and impartiality before any new nominee is confirmed. 

Here are 10 questions that require answers.

1.  Has the President ever, in any way, asked you for or indicated he might expect your loyalty to him personally?  Will you commit that if he ever does, you will report that immediately to this committee?

2.  The promise that every American will be treated equally under the law and that none is above the law is a bedrock principle of American democracy.  The freedom from political influence — real or perceived — in the impartial enforcement of the law underpins all of our other freedoms.  For decades, the White House has had a policy, called a “contacts policy,” restricting its communications with the Department of Justice to protect its impartial investigative and law enforcement responsibilities.  Current White House Counsel Don McGahn has issued a self-policing protocol that forbids White House staff, even the President himself, from speaking to you about an FBI investigation.  Are you familiar with this policy?  What steps will you take if anyone at the White House, even the President himself, communicates with you about a contemplated or actual investigation or enforcement action?  Will you commit to report to this committee if the White House attempts to communicate, or actually communicates with you about any investigation or enforcement matter?

3.  Like the White House’s historical contacts policy, the Department of Justice, including the FBI, has had in place a written policy to strictly limit communications with the White House to prevent political interference, or even the appearance of political interference.  Are you familiar with this policy?  

4.  This White House has aggressively, and inappropriately, and perhaps illegally, directed the FBI’s action, in more than a few instances, e.g.:

The brazen nature of these situations sets the stage, for example, for a White House political advisor to call up a FBI office to instruct agents to search the home of a political detractor.  In order to give the public confidence, and give the staff of the FBI confidence, that such meddling will be refuted on your watch, will you take steps to train FBI staff on their obligations to absolutely comply with the DOJ’s contacts policy by rebutting and reporting any initiation of contacts from the White House?

5.  In January 2017, the Intelligence Community, including the FBI, issued a report concluding that the Russian government had interfered in the 2016 election in order to aid the campaign of Mr. Trump.  Director Comey confirmed in testimony to Congress in March that the FBI’s investigation included whether the Trump campaign or Trump associates were involved in or coordinated with Russia on its interference in the campaign.  Do you agree that if the FBI investigation concludes that the Trump campaign or associates of Mr. Trump aided or colluded with Russia in its interference in the 2016 election, that it would not be appropriate for President Trump to remain in office?  

6.  FBI Director Comey reportedly sought more resources to investigate potential Russian interference in the 2016 Presidential election and any Trump campaign collusion with Russia.  Now Special Counsel Mueller will have to make that determination about the resources he needs to responsibly direct this complex, weighty investigation.  Nearly 20 years ago, when DOJ established the rules for creation of a special counsel position, it required DOJ to “cooperate to the fullest extent possible with the Special Counsel,” and contemplated “assignment of needed investigative resources from the Federal Bureau of Investigation.”  See 28 C.F.R. Sec. 600.5; 64 Fed. Reg. 37038-44 (July 9, 1999).  If Special Counsel Mueller seeks FBI resources to carry out that investigation, will you promptly provide him the support he needs from the FBI?

7.  Attorney General Jeff Sessions is recused from the Russia investigation.  Will you commit to report to this Committee within 24 hours if you become aware of any breach of Attorney General Sessions’s recusal commitment?

8.  The FBI plays a critical role in assessing security clearances for senior White House officials, among many other of our country’s employees who hold security clearances.  If the FBI becomes aware of information, such as through the Russia investigation, that may compromise individuals with security clearances, will it take appropriate action to recommend suspension, or withdrawal, of security clearances if new facts warrant it, despite the political risk involved?  And will it commit to report to this Committee if the White House ignores its advice on security clearances?

9.  President Trump has used private security forces, who have been the subject of criticism for impeding free speech rights of protestors, using excessive force, engaging in racial profiling, as well as impeding transparency and accountability.  And indeed, President Trump used his former bodyguard to deliver the letter firing Director Comey – an act many perceived to be intended as a threat.  The FBI is our nation’s foremost law enforcement agency, and its work should not be replaced, contracted out, interfered with, or in competition with any private entity or set of individuals directed by the President.  If you should become aware of any such proposal or circumstance, such as President Trump has used private security personnel in addition to the U.S. Secret Service, will you report it to this committee?

10.  When the Congress enacted legislation to create a 10-year term for the FBI Director, its sponsor, Robert C. Byrd (D-WV) intended to prevent FBI abuses through either political manipulation or autocratic control unchecked by either executive or legislative oversight.”  Both parties, and the majority and minority in Congress, must perform this oversight role – and yet the Trump Administration has recently adopted a policy that it will only respond to oversight requests from Republican Committee Chairmen.  Will you submit to legislative oversight by responding to inquiries and requests for material from Ranking Members of Committees with jurisdiction over the FBI?

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