Here’s a new twist in the Robert S. Mueller III saga: A former top Senate staffer for Attorney General Jeff Sessions is nearing confirmation to head the Justice Department’s Criminal Division. Should his appointment worry people who want to protect the special counsel’s independence?
As with any issue involving Mueller and the Trump White House, the answer reflects the supercharged atmosphere surrounding the Russia investigation. This may seem like a routine bureaucratic appointment. But because the stakes are so high in any matter that affects Mueller’s status, it’s worth reviewing the basic questions before the Senate votes on confirmation.
The nominee is Brian Benczkowski, who served as head of the Trump transition team at Justice and was staff director of the Senate Judiciary Committee when Sessions was the ranking Republican. Supporters praise his performance in the George W. Bush administration. “I’ve never seen Brian do anything unethical, nor do I think that he ever would,” says Michael Mukasey, who made Benczkowski his chief of staff when he was Bush’s attorney general.
Critics fault Benczkowski for his 2017 legal representation of Alfa Bank, a Russian financial giant that has prospered under the Putin government, after he helped run the Trump transition operation. News reports in 2016 had explored the bank’s possible computer communications with Trump Tower, but Benczkowski told senators that two independent investigations later found no connection between the bank and the Trump Organization.
Benczkowski now says he wouldn’t have taken Alfa Bank as a client had he anticipated his nomination to head the Criminal Division. But when asked by the Judiciary Committee if he would recuse himself from the Russia investigation because of the Alfa connection, he answered: “I cannot commit to such a recusal at this time.”
Benczkowski also told senators that in a December 2016 conversation with Sessions, he had criticized “mistakes” by James B. Comey, then FBI director, in handling the Hillary Clinton email investigation, “converting his role as FBI director into that of a prosecutor. . . .” This was one of the rationales Trump initially gave for firing Comey last May.
The leading skeptic about Benczkowski’s nomination is Sen. Sheldon Whitehouse (D-R.I.), a Judiciary Committee member who voted against Benczkowski in the 11-to-10 party-line vote that sent his nomination to the floor in January. Whitehouse, a former U.S. attorney, worries that as Criminal Division chief, Benczkowski could have a “window” on the Mueller investigation.
Whitehouse bases his concern on a previously undisclosed Dec. 11 letter he received from Stephen Boyd, who heads Justice’s Office of Legislative Affairs. That letter acknowledged that Benczkowski might consult with Mueller, as he could with a U.S. attorney.
Boyd’s letter noted that the Criminal Division chief “has no supervisory role with respect to the special counsel. . . . However, it is possible that the SCO [special counsel’s office] will seek approvals from the Criminal Division as required by statute, regulation, or policy, or may simply want to consult with subject-matter experts in the Criminal Division as appropriate in the normal course of department investigations.”
Boyd explained that if confirmed, Benczkowski would talk to “appropriate ethics experts” at Justice “prior to his participation in or supervision of the SCO’s interaction with the Criminal Division.” Boyd stressed that Mueller’s boss would be Deputy Attorney General Rod J. Rosenstein (because of Sessions’s recusal), but he left room for Benczkowski to advise.
Whitehouse worries that by sanctioning even a limited role for Benczkowski, Justice has opened a backdoor. He outlined his concern in an email Wednesday. “We still don’t have a clear view of how the Justice Department protects special counsel Mueller’s investigation,” Whitehouse cautioned. He continued:
“If, as Justice officials have told me, the special counsel clears matters through the Criminal Division, that could give Benczkowski a window into the investigation. I remain concerned he could provide a back channel to his old boss and to the man in the Oval Office who’s declared open war on the Mueller investigation, and that procedures in place are not adequate to detect or prevent this.”
Benczkowski wouldn’t comment publicly, because of the pending vote on his nomination. Sarah Isgur Flores, the Justice Department spokesperson, said Benczkowski is “a talented and well- regarded lawyer with extensive experience” and that Justice is “eager for the Senate to confirm him.”
The Benczkowski nomination may seem like small potatoes. But we should examine every issue that affects Mueller’s independence right now. In the Benczkowski nomination, Justice has summarized the rules, Whitehouse has voiced his worries, and the nominee appears to recognize proper limits. If these checks and balances hold up, they can help protect the rule of law as Mueller’s investigation proceeds.