The referral itself is devoid of any particulars, simply accusing Steele of making false comments relating to the dossier. Were these under oath? How do they have knowledge of such comments? It’s hard to imagine who other than the FBI itself — in which case the FBI and Justice Department have the relevant facts — Steele spoke to. He has not to our knowledge spoke to any Senate committee, although the Intelligence Committee chairman has attempted to reach him.
Democrats were never consulted on this. “Sadly, the first major action taken by the Republican majority on the Judiciary Committee seems to be aimed at someone who reported wrongdoing, rather than committed it,” emails former prosecutor Sen. Richard Blumenthal (D-Conn.). ” This action was taken without any bipartisan cooperation, or even consultation. These vaguely stated, secret allegations seem designed more to distract attention from the priority issues for investigation, and discredit the FBI and other law enforcement.”
Moreover, the statute that Grassley and Graham cite — 18. U.S.C. 1001 — requires that a misstatement be intentionally wrong and material. It is ironic that the Justice Committee chairman who witnessed now-Attorney General Jeff Sessions repeatedly make false statements under oath would ignore these misstatements of fact and choose instead to vaguely point to ones apparently made to other people. “In order to violate 18 USC 1001 in this context Steele would have had to make a false statement to either a congressional committee or the FBI,” says Susan Hennessey of Lawfare blog. “Reportedly, Steele hasn’t met with Congressional committees and it’s difficult to see what information Grassley and Graham would have about what statements Steele made to the FBI. So the committee is making a referral for criminal investigation without offering any basis for why it would even be aware of the conduct at issue.” She adds, “Bottom line, this is essentially just an empty suggestion. There is nothing that compels DOJ or the FBI to actually open or pursue an investigation based on this kind of letter.”
The lack of specificity is a telltale sign that Grassley and Graham are, like the president, manipulating the justice system for partisan purpose. It is telling that this letter does not come from all Republicans on the committee, let alone any Democrats.
Renato Mariotti, former federal prosecutor and a Democratic candidate for attorney general in Illinois, tells me, “If this wasn’t done for political reasons, why make the referral public? All it does is alert Steele. This looks like a political stunt.” He continues, “A legitimate referral would provide information to the FBI that it doesn’t otherwise possess for the purpose of alerting it to potential criminal activity.”
The gambit from Grassley and Graham, something one would expect of Trump’s lawyers, raises more questions than answers. The country should be told that if the White House requested this or got a heads-up, why Democrats were not included and why a referral with no new facts is necessary. Grassley and Graham have inadvertently demonstrated what critics of the GOP have claimed — namely, that Republicans are hopelessly partisan and uninterested in performing their constitutional role as a check on the executive branch. They are helping Trump quite obviously in an effort to smear a witness, although not a critical one. “I have never before heard of Congress or any other investigative entity making a criminal referral to DOJ about activities that did not involve the body making the referral,” says former Justice Department spokesman Matt Miller. “And it’s even more absurd given that the supposed false statement would have been made to the FBI. History will record who stood up for the rule of law during this trying time for our country and who tried to weaken it, and Graham and Grassley just guaranteed that they will be on the wrong side of the ledger.”
Walter Shaub, former director of the Office of Government Ethics, tells me: “Just once, I’d like to see the Chairman express concern about the link between the sitting President’s campaign and a hostile foreign government, rather than calling for investigations either of people looking into that link or of a woman who may be the world’s most investigated human, hasn’t been in government for 5 years, and isn’t running for anything.”
Moreover, as has been established, Steele did not prompt the FBI to investigate the Russia connection. Any allegations made therein would need to be investigated and confirmed directly. All this does is smear Steele and out the senators as hopeless hacks. “One point of indisputable fact is that the FBI’s investigation of Russian interference in our election — and Trump campaign collaboration with it — was triggered by information completely independent from the dossier or Christopher Steele or Fusion GPS,” says Blumenthal. “This disappointing step seems to deflect from the genuinely urgent and critical topics of our Committee’s inquiry: Russian meddling in our democracy, Trump campaign collusion with it, and possible obstruction of justice.”
Steven Schooner of George Washington University Law School points out to me what thin gruel this all is. “Putting aside the political infighting, gamesmanship, showmanship, and potential for distraction (none of which, necessarily, should be disregarded as possible drivers here), it’s easy to be skeptical about this,” he said. “The question that immediately comes to mind is, why wouldn’t the Justice Department — under AG Sessions — already have initiated charges, if the FBI reports (that, apparently form the basis for the Judiciary Committee members’ actions) demonstrate that a crime had been committed?” The answer one comes back to is that this is a stunt unbecoming of two senior senators.
Here, however, is a challenge for other Republicans. Sen. Ben Sasse (R-Neb.), who recently spoke out about the need for a common set of facts and the need to leave partisanship aside, has a perfect opportunity to restrain his fellow Republicans, chide them for this stunt, express the imperative to let the investigation play out and reiterate a commitment to the rule of law. Will he? Don’t hold your breath.
UPDATE: “I know of no basis for believing that Steele may have lied to the FBI and thus no basis for the Grassley/Graham referral.,” says constitutional lawyer Laurence H. Tribe. “I’ve been following this closely and am also unaware of any basis for Senators Grassley or Graham to suspect such lying. Thus it’s hard not to view this referral as an abuse of power designed to undermine and thus obstruct the Mueller investigation into the Trump campaign’s possible collusion with Russia in last year’s presidential election.”
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