The FBI Gets the Attention of the AG and Courts Over Ignoring Subpoenas - Morale Possibly Ruined

Late last week, House Judiciary Committee Chairman Bob Goodlatte hit Deputy Attorney General Rod Rosenstein with a subpoena for documents related to several investigations, such as the Clinton email investigation. What brought this on was stonewalling of the committee’s document requests by the FBI.

According to the Washington Examiner’s Byron York, the usually somnolent Jeff Sessions is getting exercised:

Late Tuesday, a source who asked to be identified as a “DOJ insider” emailed an update from inside the Justice Department, making clear Sessions has grown impatient with FBI Director Christopher Wray:

Senior staff on both sides of the street have met on this and the FBI is getting called on the carpet. The Attorney General is angry with how slow the process has moved when it comes to requests from Congress to the FBI. He’s told Wray that the pace is unacceptable and that if the FBI needs to double the number of people working on this, then that’s what they need to do, but he is done seeing the Department criticized for the FBI’s slow walking of requests from Congress like the last administration when these requests should be a top priority.

Sure enough, on Tuesday, Wray issued a press release promising to double the number of people working on the document request. From Wray:

As the Director of the FBI, I am committed to ensuring that the Bureau is being transparent and responsive to legitimate congressional requests. Up until today, we have dedicated 27 FBI staff to review the records that are potentially responsive to Chairman Goodlatte’s requests. The actual number of documents responsive to this request is likely in the thousands. Regardless, I agree that the current pace of production is too slow. Accordingly, I am doubling the number of assigned FBI staff, for a total of 54, to cover two shifts per day from 8 a.m. to midnight to expedite completion of this project.

Wray’s announcement was welcome news to members of the House committee. Welcome — but still cautiously received.

“Obviously that’s a good sign, but I’ll believe it when I see it,” Rep. Jim Jordan, R-Ohio, a member of the committee who has been pursuing the issue, said in an interview Tuesday evening. “But as important as getting documents to us in a much more timely fashion is, are they going to be redacted? We know in the past that documents we have received have been redacted so much that we can’t figure them out.”

This is just one of several areas where the FBI is carrying out a vigorous rearguard action to try to avoid producing documents that will inevitably embarrass the agency and a lot of the former leadership.

For more than two months, the FBI has failed to abide by a judge’s order to turn over all of former FBI Deputy Director Andrew McCabe’s text messages, emails and SMS phone messages to a government watchdog group that has filed a lawsuit on behalf of a former senior FBI special agent. The communications in question are related to McCabe’s wife’s unsuccessful run for Virginia State senate and might also contain invaluable information on McCabe’s role in the Bureau’s investigation into Hillary Clinton’s private email server used to send classified information, several former FBI sources and a government official told this reporter.

In January, Judicial Watch, a formidable conservative watchdog group based in Washington D.C., filed a lawsuit against the FBI for the communications on behalf of retired FBI Supervisory Special Agent Jeff Danik. Danik spent more than 28 years with the bureau as a supervisor in the counter-terrorism division and special overseas advisor. Danik filed his original Freedom of

“They have not produced one text of McCabe’s, not one…”

Information Act (FOIA) request in October 2016 for McCabe’s communications. After Danik filed his original FOIA the FBI responded on November 8 and 9, 2016 denying his request. Danik appealed to the Justice Department and in June of 2017 the DOJ wrote that the FBI should search for and turn over any pertinent documents. The FBI still refused to turn over the documents and in January he filed a joint lawsuit with Judicial Watch for the documents.

In the case of BuzzFeed defending itself from a lawsuit over publication of Christopher Steele’s Trump dossier, the FBI has drawn the slack-jawed amazement of a federal judge:

Following a hearing on its motion, BuzzFeed filed a follow-up report with the district court, noting that rather than depose government officials, it merely needed the federal government to submit an affidavit swearing to three facts: (1) whether, prior to January 10, 2017, the FBI, DOJ, or Office of National Intelligence had a copy of the dossier as published by BuzzFeed; (2) “whether on or about December 9, 2016, the FBI received from Senator John McCain a copy of the Dossier containing the first 33 pages published by BuzzFeed”; and (3) “whether, prior to January 10, 2017, Mr. Clapper, Mr. Rogers, Mr. Brennan, and/or Mr. Comey briefed President Obama about the Dossier and provided a synopsis of it.”

In response, last week the DOJ filed with the DC district court “a declaration classified SECRET for the Court’s ex parte, in camera review.” The DOJ submitted this sworn statement to support its claim that the “law enforcement privilege” protects it from complying with BuzzFeed’s subpoena. There is no timetable for the district court to rule on the motion, but with discovery closing in the Florida case in June, a decision is likely come well in advance of that deadline to allow BuzzFeed the ability to appeal an adverse decision.

While there is no way to know how the court will eventually rule, when the DOJ made this same argument at a February hearing, the district court judge said it was going to be “hard to sell.” “What is the burden on the United States Department of Justice to produce a two-paragraph affidavit that says, ‘[t]his is when we got the December memo?’” the judge demanded to know.

What is going on here is typical of what is colloquially referred to as the ‘deep state.’ That situation that exists when agencies stop being obedient to the rule of law and to the directions of their political masters and start focusing on protecting themselves, their secrets, and their prerogatives from scrutiny. While one would expect an agency of the executive branch to cheerfully comply with document requests from a committee chairman of the same party as the president, that is not how it works.

The FBI is going to protect itself from embarrassment. Rest assured it is going to try to protect Comey from embarrassment. And it also has an eye on precedent. If it willingly gives up documents to a GOP chairman because there is a GOP president, it will lose the ability to resist the demands of a hostile committee chairman at some point in the future.

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