In the spring of 2006, top Justice Department officials were considering an extraordinary next step in a bribery investigation of a sitting House member.
Then-Attorney General Alberto Gonzales had huddled at least twice with senior FBI officials, Deputy Attorney General Paul McNulty and Steven Bradbury, who led Justice’s Office of Legal Counsel, before signing off on a raid of then-Louisiana Rep. William Jefferson’s congressional office — an unprecedented action that would shake the political establishment to its core.
Inherent in the criminal investigation were the raw political implications of a Republican administration taking on a Democratic lawmaker.
Indeed, Gonzales, who did not tip the Bush White House to the plan, McNulty and FBI Director Robert Mueller privately vowed to resign if the White House had ordered the seized evidence returned to Jefferson.
“Any decision to go after a lawmaker is a big deal,” Gonzales said, recently recounting the 15-year-old episode that now appears almost restrained in light of the Trump Justice Department’s decision to secretly seek the phone records of two Democratic congressmen as part of a 2018 leak investigation.
While the two cases involved sitting members of Congress, serious questions remain about whether the Justice Department departed from strict scrutiny traditionally afforded law enforcement actions involving elected officials in favor of partisan political interests of the Trump White House.
It is immediately unclear what specific information Justice was seeking in its pursuit of communications involving House Intelligence Committee Chairman Adam Schiff, D-Calif., and Rep. Eric Swalwell, D-Calif., as part of the investigation, which was closed and did not result in any allegations of wrongdoing by the congressmen.
Former top Justice officials have indicated they either were not briefed or not aware of the requests for communications data. William Barr has indicated that he was not aware of the requests, according to a person familiar with the former attorney general. Former Deputy Attorney General Rod Rosenstein did not respond to inquiries from USA TODAY, but CNN reported that Rosenstein has told associates that he was not aware of the Justice action. Jeff Sessions, Trump’s first attorney general, could not be reached for comment.
“I think it’s a stretch to think that nobody was kept in the loop on an investigation of this sort with such a high profile,” said David Weinstein, a former federal prosecutor in Miami. “I find it hard to believe.”
Yet, with some former officials distancing themselves from the department’s contentious action, a more disquieting scenario has been raised.
“Assuming that they (the former leadership) didn’t know about it, what happened here could have involved a rogue element outside the normal lines of authority and that is a terrible place to be,” Gonzales said. “That is very scary to consider.”
Last week, the Justice Department’s independent watchdog announced that it was launching a broad investigation into whether the Trump administration and its two attorneys general improperly seized the phone records of the House Democrats, their staff and journalists from the Washington Post, New York Times and CNN as part of the leak investigation.
Justice Department Inspector General Michael Horowitz said investigators would look beyond the subpoenas to “other legal authorities (used) to obtain communication records mldr; in connection with recent investigations of alleged unauthorized disclosures of information to the media by government officials.”
“The review will examine the Department’s compliance with applicable DOJ policies and procedures,” Horowitz said, “and whether any such uses, or the investigations, were based upon improper considerations. If circumstances warrant, the OIG will consider other issues that may arise during the review.”
While the inspector general’s investigation proceeds, Attorney General Merrick Garland said Monday he had instructed Deputy Attorney General Lisa Monaco to “strengthen the department’s existing policies and procedures for obtaining records of the Legislative branch.”
“Consistent with our commitment to the rule of law, we must ensure that full weight is accorded to separation-of-powers concerns moving forward,” Garland said.
Democrats, meanwhile, have vowed to launch their own investigations of the Justice action, signaling that they will call Barr, Sessions and other other Justice officials to testify.
Schiff and other lawmakers have long said that Trump used the Justice Department to punish his perceived political enemies, calling the subpoena requests “yet another example of Trump’s corrupt weaponization of justice.”
There has been no determination of whether the subpoenas were improper. But given Trump’s campaign to discredit his political enemies, notably Schiff, former federal prosecutor Weinstein said it is difficult to uncouple politics from the law enforcement action.
“I think you have to at least consider that politics are attached to this,” Weinstein said.
Never before had the FBI raided the congressional office of a sitting lawmaker, but that’s what Justice officials were proposing – and girding for – in the corruption case of William Jefferson in 2006.
From the U.S Attorney’s Office in Alexandria, Va., the FBI, and Justice’s Criminal Division to the attorney general’s suite at Main Justice, a cadre of officials weighed the merits of such an extraordinary action, knowing there would be blowback.
“We knew it was going to be controversial,” said McNulty, who then served as the No. 2 official at the Justice Department, adding that he could recall no disagreement that the action was “necessary in the context of the investigation.”
At the time, prosecutors were in the midst of a long-running bribery investigation that had famously uncovered $90,000 in cash stashed in the congressman’s home freezer months before.
“There was no question that this guy was corrupt, but we wanted to make sure that we ran all of the traps,” said one former official involved in the investigation. “There was no question about the need to go forward, but we wanted to make sure we did it by the book.”
That extensive consultation, however, did not short-circuit the political firestorm when FBI agents arrived at Jefferson’s office, with the congressman finding an unlikely ally in then Republican House Speaker Denny Hastert, R-Ill., who contended that the FBI had overstepped its authority, violating the Constitution’s separation of powers clause.
Although Jefferson ultimately was convicted in the corruption case, a federal appeals court ruled that the congressional office search had violated the Constitution.
McNulty, now a college president, has incorporated the Jefferson episode in a class he teaches on the Constitution.
While the former deputy attorney general said that there are still many unanswered questions related to the subpoena requests for the lawmakers’ phone data, he was satisfied with the level of deliberation involved in the Jefferson inquiry.
“Every now and then, the Department of Justice is going to have to make a decision that raises a significant constitutional question,” McNulty said. “And sometimes they may get it wrong.”
Contributing: Kristine Phillips and Josh Meyer