Reince Priebus’s request that the FBI refute a report of Donald Trump associates’ contacts with Russian intelligence appears to have violated the White House’s policy restricting political interference in pending investigations, according to a copy of the policy obtained by POLITICO.
The policy says only the president, vice president and White House counsel can discuss specific investigations or cases with the attorney general, deputy attorney general, associate attorney general or solicitor general. Any other conversations require the approval of the White House counsel, according to the document.
White House spokeswoman Sarah Sanders said Priebus’s conversation was permissible because it involved responding to a news article.
But former White House lawyers questioned Sanders’ assertion, noting that if officials could contact the Justice Department about any case covered by the news media, there’d be few major cases off limits.
“Under this policy, it’s totally out of line,” a former White House lawyer said.
Trump’s policy includes an exception for “public affairs,” but only in “matters that do not relate to a particular contemplated or pending investigation or case.”
Priebus was discussing a New York Times report that the FBI, as part of its investigation into Russian interference in the 2016 election, intercepted and reviewed repeated contacts between Trump associates, including campaign staff, and Russian agents.
Trump’s policy restricting contacts with the Justice Department follows a 40-year tradition of presidents from both parties taking steps to insulate law enforcement from political influence. But former executive branch lawyers say that enforcement is the key.
“What are they doing to ensure the policy is followed?” said Ian Bassin, a former Obama White House lawyer and executive director of watchdog group United to Protect Democracy. “The rational conclusion is: not enough.”
White House officials said Priebus made the request because FBI assistant director Andrew McCabe told Priebus in a conversation on Feb. 15 that the Times article wasn’t accurate. Priebus asked “What can we do about this?” and McCabe said he would answer later, according to the officials’ account. McCabe and FBI Director James Comey then separately called Priebus to say the FBI couldn’t comment, according to the White House officials.
White House counsel Don McGahn laid out the policy in a Jan. 27 memo to all White House staff titled “Communications Restrictions with Personnel at the Department of Justice.”
“In order to ensure that DOJ exercises its investigatory and prosecutorial functions free from the fact or appearance of improper political influence, these rules must be strictly followed,” McGahn wrote in the memo.
The policy resembles the one in place during the Obama administration, but the Trump administration’s conduct suggests it isn’t being enforced, said Norm Eisen, a former ethics lawyer for President Obama.
“They type nice-sounding phrases on paper but they don’t actually follow them,” said Eisen, who leads a watchdog group called Citizens for Ethics and Responsibility in Washington that is suing Trump over accepting foreign payments known as emoluments. “The treatment of the Reince contact is a perfect example — they’re making a mockery of this.”
The firewall between the White House and the Justice Department has been a consistent policy for 40 years, set out in memos from White House counsels and attorneys general from both parties. The policies originated in the Carter administration’s efforts to restore public faith in the Justice Department after Watergate and a 1978 corruption scandal in which a member of Congress asked the attorney general to fire a prosecutor who was investigating the lawmaker.
While the independence of the Justice Department received special attention, past administrations also extended restrictions to all federal agencies — preventing White House staff from weighing in on everything from corporate mergers to commercial licenses. But the McGahn memo applies only to the Justice Department.
That would leave the door open to White House staff involving themselves in specific civil enforcement cases, adjudications, contracts, waivers, grants and other activities by federal agencies, or even law enforcement matters at agencies outside DOJ like the U.S. Park Police or Immigration and Customs Enforcement.
A White House official said staff has received oral guidance about other agencies, and a separate memo is being finalized.
“It’s good to see the White House has a partial policy in place, but this only covers contacts with DOJ while prior policies covered contacts with all agencies about matters that should be free of improper interference,” said Bassin.
The policy still leaves the White House counsel with significant discretion to approve other contacts or give certain staffers special privileges. The flexibility is important, but past administrations used it sparingly, three former White House lawyers said.
“They didn’t make it clear these communications would be extremely rare, and not happen if persons inside the White House were affiliated with the entities being investigated,” Richard Painter, a former ethics lawyers to George W. Bush, said of Trump’s policy. “We made it very clear: you don’t contact the Securities and Exchange Commission, you don’t contact the Federal Trade Commission, you don’t contact the Federal Election Commission — generally the White House stays out of particular-party matters.”
By: Isaac Arnsdorf