WASHINGTON — President Donald Trump did not need to send a memo or telephone his attorney general to make his desires known. He broadcast them for all the world to see on Twitter. The instruction was clear: The Justice Department should investigate his defeated opponent from last year’s campaign.
However they were delivered, Trump’s demands have ricocheted through the halls of the Justice Department, where Attorney General Jeff Sessions has now ordered career prosecutors to evaluate various accusations against Hillary Clinton and report back on whether a special counsel should be appointed to investigate her.
Sessions has made no decision, and in soliciting the assessment of department lawyers, he may be seeking a way out of the bind his boss has put him in by effectively putting the matter in the hands of professionals who were not politically appointed. But if he or his deputy authorizes a new investigation of Clinton, it would shatter norms established after Watergate that are intended to prevent presidents from using law enforcement agencies against political rivals.
The request alone was enough to trigger a political backlash, as critics of Trump quickly decried what they called “banana republic” politics of retribution, akin to autocratic backwater nations where election losers are jailed by winners. The issue will almost certainly energize what was already shaping up to be a contentious hearing Tuesday, with Sessions testifying before the House Judiciary Committee.
“You can be disappointed, but don’t be surprised,” said Karen Dunn, a former prosecutor and White House lawyer under President Barack Obama who advised Clinton during her campaign against Trump. “This is exactly what he said he would do: use taxpayer resources to pursue political rivals.”
Democrats still vividly recall Trump on the campaign trail vowing to prosecute Clinton if he won.
“It was alarming enough to chant ‘lock her up’ at a campaign rally,” said Brian Fallon, who was Clinton’s campaign spokesman. “It is another thing entirely to try to weaponize the Justice Department in order to actually carry it out.”
But conservatives said Clinton should not be immune from scrutiny as a special counsel, Robert Mueller, investigates Russia’s interference in last year’s election and any ties it may have to Trump’s campaign. They argued, for example, that Clinton was the one doing Russia’s bidding in the form of a uranium deal approved when she was secretary of state.
Peter Schweizer, whose best-selling book, “Clinton Cash,” raised the uranium issue in 2015, said a special counsel would be the best way to address this matter because it would actually remove it from politics.
“It offers greater independence from any political pressures and provides the necessary tools to hopefully get to the bottom of what happened and why it happened,” said Schweizer, whose nonprofit organization was co-founded by Steve Bannon, Trump’s former chief strategist.
A letter by Stephen E. Boyd, an assistant attorney general, to Rep. Robert W. Goodlatte, R-Va., chairman of the House Judiciary Committee, disclosed that career prosecutors were evaluating issues that the congressman raised in his own letters to the department in July and September.
Among the issues raised by Goodlatte was the uranium case. In 2010, Russia’s atomic energy agency acquired a controlling stake in Uranium One, a Canadian company that at the time controlled 20 percent of U.S. uranium extraction capacity. The purchase was approved by a government committee that included representatives of nine agencies, including Clinton’s State Department.
Donors related to Uranium One and another company it acquired contributed millions of dollars to the Clinton Foundation, and Bill Clinton received $500,000 from a Russian bank for a speech. But there is no evidence that Clinton participated in the government approval of the deal, and her aides have noted that other agencies, including the Nuclear Regulatory Commission, signed off on it as well. The company’s actual share of U.S. uranium production has been 2 percent; the real benefit for Russia was securing far greater supplies of uranium from Kazakhstan.
Other issues raised by Goodlatte include Clinton’s use of a private email server, which was investigated by the FBI until the bureau’s then-director, James Comey, declared last year that no prosecutor would press charges based on the evidence. Goodlatte also asked the Justice Department to investigate Comey for leaking details of his conversations with Trump after the president fired him.
To the extent that there may be legitimate questions about Clinton or Comey, however, the credibility of any investigation presumably would be called into question should one be authorized by Sessions or his deputy, Rod J. Rosenstein, because of the way it came about under pressure from Trump.
There are few if any recent precedents. President George W. Bush did not order an investigation reopened into the fundraising practices of Al Gore, his vanquished rival, nor did Obama suggest the Justice Department look again at the Keating Five lobbying case that involved John McCain, whom he defeated. Obama rebuffed pressure from his liberal base to investigate Bush and Vice President Dick Cheney for their actions authorizing the waterboarding of terrorism suspects despite anti-torture laws.
During the Obama administration, the Internal Revenue Service applied extra scrutiny to tax exemptions for conservative nonprofit groups and was accused of politicizing the agency much like President Richard M. Nixon did. But no evidence emerged tying that to Obama.
Trump promised during last year’s campaign that if he were elected, he would instruct his attorney general to appoint a special prosecutor to investigate Clinton. But he backed off that pledge shortly after the election, saying, “I don’t want to hurt the Clintons.”
By last summer, with Mueller’s investigation bearing down, he had changed his mind. To Trump, the investigation was a “witch hunt” based on a “hoax” perpetrated by Democrats. It was all the more galling to him, advisers said, because Clinton had not been prosecuted, a frustration exacerbated by recent reports about how her campaign helped finance a dossier of salacious assertions about him.
While presidents typically are not supposed to intervene in investigations or prosecutions of specific individuals, Trump’s calls for an investigation of Clinton over the last several months have been repeated, insistent and not even slightly subtle.
He wrote on Twitter in July:
So why aren't the Committees and investigators, and of course our beleaguered A.G., looking into Crooked Hillarys crimes & Russia relations?— Donald J. Trump (@realDonaldTrump) July 24, 2017
He wrote in October:
...are now fighting back like never before. There is so much GUILT by Democrats/Clinton, and now the facts are pouring out. DO SOMETHING!— Donald J. Trump (@realDonaldTrump) October 29, 2017
Trump wrote again in November:
....People are angry. At some point the Justice Department, and the FBI, must do what is right and proper. The American public deserves it!— Donald J. Trump (@realDonaldTrump) November 3, 2017
Everybody is asking why the Justice Department (and FBI) isn't looking into all of the dishonesty going on with Crooked Hillary & the Dems..— Donald J. Trump (@realDonaldTrump) November 3, 2017
Trump has expressed frustration that he does not control the FBI or Justice Department. By his own account, he fired Comey while bristling at the Russia investigation that the FBI director was at the time leading. He has also expressed deep anger at Sessions for recusing himself from overseeing that investigation, resulting in Mueller’s appointment. Trump said last summer that he would never have appointed Sessions had he known he would do that, and he has since refused to rule out firing the attorney general.
With his job potentially on the line, Sessions has been put in the difficult position of absorbing his president’s ire while safeguarding the department’s traditional independence. Some legal experts said Boyd’s letter actually may be a way of defusing the situation. By asking career prosecutors to evaluate the evidence, he has a ready-made reason not to appoint a special counsel if they do not recommend one.
“I have no idea what will happen but this letter is entirely consistent with the AG later saying, ‘we followed normal process to look in to it and found nothing,'” said Jack L. Goldsmith, a former top Justice Department official under Bush. “The letter does not tip off or hint one way or another what the AG’s decision will be.”
At least one active Twitter user will be waiting for that decision.