How will the president and the most senior law enforcement officials in the United States select and ultimately manage a new FBI director while the FBI investigates the Trump campaign?
That question is at the heart of the complex ethical situation created when President Trump fired the bureau’s former director, James Comey. Attorney General Jeff Sessions, meanwhile, has pledged to recuse himself from any investigations concerning the 2016 campaigns. Will Trump and Sessions walk out of the room if the subject of Russia and the campaigns comes up?
So far, the answer from the Trump administration is: There is no problem.
Over the weekend, when Justice Department officials were beginning interviews to find a new FBI director, Sen. Dianne Feinstein tweeted that Sessions — due to his recusal from the Russia investigation — should recuse himself from the selection of a new FBI director.
BuzzFeed News asked spokespersons from the White House and Justice Department on Wednesday whether any effort had been made to ensure that Sessions' recusal was figuring into FBI director selection process; how the process was accounting for how the potential nominees would address questions regarding the investigation; and whether they expected the eventual nominee to recuse himself or herself from the investigation if confirmed.
White House press secretary Sean Spicer responded, “The process continues as discussed.”
The Justice Department spokesperson did not respond to multiple requests for comment on the questions — echoing earlier nonresponsiveness on the question of Sessions' recusal from any part of the selection process.
This all follows an unusually intense period of news. The past three weeks have included a dizzying number of actions, stories, and revelations surrounding the president of the United States, the investigation into his campaign, and whether the president has tried to influence — or even shut down — the investigation.
The complicated but important timeline is worth laying out:
On May 8, President Trump, Attorney General Jeff Sessions, and Deputy Attorney General Rod Rosenstein met to discuss then-FBI Director James Comey’s fate. In discussing Comey, whose agency was running the investigation into the questions surrounding the Trump campaign and Trump associates’ ties to Russia, neither Trump nor Sessions, due to his recusal, should have been discussing (or told) anything about the investigation.
On May 9, Rosenstein wrote a memo detailing problems with Comey’s handling of the FBI’s investigation into Hillary Clinton’s use of a private email server during her time as secretary of state and concluding that Comey “cannot be expected” to do what would be needed for the FBI “to regain public and congressional trust.” Sessions forwarded it to Trump, recommending Comey’s firing. Trump fired Comey before the day was out.
Rosenstein, senators said on Thursday, knew that Comey was going to be fired before he wrote the memo — meaning he likely learned the intended result at, if not before, the May 8 meeting.
On May 10, we have since learned, Trump shared highly classified information with Russian officials in a meeting at the White House. The next day, Trump did an interview with Lester Holt of NBC News, where he said he would have fired Comey regardless of Rosenstein’s memo — and acknowledged that he asked Comey whether he was under investigation.
Over the weekend, Sessions and Rosenstein were already at the point of interviewing possible candidates for FBI director. CNN reported that Comey’s firing and the Russia investigation were not discussed.
On Monday, Sessions briefed Trump. On Wednesday, Trump himself interviewed four candidates — including former Sen. Joseph Lieberman — who was, by Thursday, Trump’s reported leading candidate for the position.
As the Wednesday interviews were taking place, however, Rosenstein was appointing Robert Mueller — himself a former FBI director — to serve as the special counsel overseeing the Russia investigation.
The timeline, and the intermingling of the same officials in the Comey firing, raises those unanswered questions about how recusals and independence will work as the new FBI director is selected.
More or less, advocates who have been aggressively fighting the administration’s perceived ethical lapses hope that the eventual FBI director nominee will take responsibility for addressing these questions — given that neither the White House nor the Justice Department appear to be doing so.
“To the extent possible Mueller as Special Counsel should lead the Russia investigation and should have contacts in the FBI who work with his office directly,” Richard Painter, the former ethics lawyer for President George W. Bush and vice chair of the board of Citizens for Responsibility and Ethics in Washington, told BuzzFeed News on Thursday.
CREW, which sued Trump already over his foreign business entanglements, has been highly critical of the Trump administration’s ethics issues.
“In view of what happened to Comey,” Painter explained, “The judgment calls on what to investigate and how to investigate should as much as possible be made by the Special Counsel.”
Faiz Shakir, the national political director at the ACLU, echoed Painter’s comments — and went a step further.
“Given the appointment of Mueller, the next FBI nominee should pledge to recuse himself or herself from any role in the investigation,” he said. “The mere fact that the White House has indicated they want this investigation to end and that they key actors sought to dismiss Comey over this matter, anyone they choose should be forced by the Senate to recuse from the investigation.”
The prospect of other Trump-related investigations in the future is part of why Painter has expressed support for Lieberman, saying that the new director “should be someone who we have confidence can have an active role in other investigations concerning the Trump administration, which are outside the scope of the Special Counsel.” On Twitter, he wrote that Lieberman “[w]on’t take any grief from Sessions.”
Others have raised questions, however, about Lieberman’s independence — given the fact that his law firm, Kasowitz Benson Torres LLP, has regularly represented Trump, including during the 2016 presidential campaign. If Lieberman ultimately is Trump’s pick, the issue is sure to be an additional ethical wrinkle in the nomination process.
Feinstein, however, expressed a different concern in a CNN interview on Thursday when asked if she would vote for Lieberman. While she didn’t say she would oppose him, she did say that “the appointment must be what’s right for the FBI at this time.”
Saying that the FBI is “separate from the political operation of our government,” Feinstein said, “I think, and I feel this very strongly, that the best appointee would be somebody that comes up in the FBI — actually a career appointment.” She pointed specifically to Andrew McCabe, the acting FBI director and one of the other people interviewed by Trump on Wednesday.