The Justice Department appears to have conducted a wholly cursory examination. It interviewed no witnesses and examined no evidence other than the complaint. Text messages within the State Department that might have provided evidence of criminality were not examined. Justice closed the file without opening a formal investigation.
Since then, the department has supplied somewhat shifting defenses of its decision. One point the department has maintained consistently is that the final decision was made by Brian Benczkowski, the head of the Criminal Division, in consultation with career attorneys at the Public Integrity Section.
Benczkowski is a political appointee with zero prosecutorial experience. Likewise, neither Deputy Attorney General Jeffrey A. Rosen nor Attorney General William P. Barr spent a day as a prosecutor. If it has ever happened before that the three top officials in the Justice Department’s criminal chain of command lacked prosecutorial experience, the idea was as terrible then as it is now.
The department’s chief explanation for closing the file with so little investigation is that the referral mentioned only potential campaign finance violations. Justice concluded that there was no possible crime because President Trump — in a July phone call urging Ukrainian President Volodymyr Zelensky to investigate the supposedly suspicious involvement of former vice president Joe Biden and his son Hunter in Ukrainian matters — had not sought a quantifiable “thing of value,” as required by the pertinent statute.
There are two conspicuous defects with this account.
The campaign finance statutes do require the receipt of a “thing of value,” and the value of dirt on a likely campaign opponent that Trump was seeking is hard to peg precisely. But it’s a third-grade analytical difference between something’s having a value that is difficult to quantify precisely and not being a thing of value at all.
The Federal Election Commission, the body charged with enforcing campaign finance law, has stated, regarding contributions by foreign nationals, that “even where the value of a good or service ‘may be nominal or difficult to ascertain,’ such contributions are nevertheless banned.” The Justice Department is supposed to consult the FEC on referrals of campaign finance violations yet in this case apparently did not.
But there is an even more fundamental problem. The Justice Department says it did not consider other possible crimes because the referral listed only a campaign finance violation.
That reasoning is spurious and raises serious concerns about the department’s supposed reliance on “established procedures,” as a spokesman put it.
When a prosecutor receives a referral from an investigative agency, the referral may list a particular statute that the agency thinks is germane. But it is axiomatic — and any rookie assistant U.S. attorney knows — that the prosecutor’s job is to determine the possible range of crimes to investigate, if any, based on the facts the agency supplied.
Here the basic fact pattern is a broad operation (which makes a prosecutor immediately think conspiracy) to pressure Zelensky to come up with negative information on the Bidens by investigating “corruption.” The pressure arose through the administration’s withholding of both military aid that Ukraine desperately needed to repel Russian aggression and a promised meeting with Trump.
A prosecutor examining this fact pattern would analyze it not simply, or even primarily, for a campaign finance violation. The basic facts suggest, for starters, the possibility of bribery, extortion and conspiracy. A thorough examination would also include a look at potential mail and wire fraud and foreign corrupt practices.
The Justice Department has offered one other excuse about the Elwood referral from the CIA. According to NBC News, Elwood intended a phone call she made to the department as a criminal referral, but Justice said it wasn’t sure she was seeking formal action, even after following up with her to confirm.
After the exhaustive investigation of Russian interference in the 2016 election by special counsel Robert S. Mueller III, the Justice Department may be understandably reluctant to take up a new criminal probe of Trump, preferring to leave consideration of the president’s conduct to the political sphere of an impeachment inquiry.
But that doesn’t mean — and it can’t mean — that the Justice Department is closed for business regarding any possible new criminal violations by others in the administration. The department’s Public Integrity Section exists for this purpose. The prosecutors there need to do their job.