As Department of Justice Inspector General Michael Horowitz is preparing his report on the FBI’s handling of its investigation into President Donald Trump’s campaign, he’s likely to reveal information derived from compelled statements of bureau and DOJ employees.
According to several former FBI officials and legal experts, it could be a potential minefield for Attorney General William Barr if he reviews the report and intends to use compelled information in any criminal prosecution against senior officials for allegedly violating the law with regard to Foreign Intelligence Surveillance Act warrant, or other matters.
Horowitz’s report will most likely contain extensive information derived from compelled statements of FBI and DOJ employees, and that’s a minefield for Barr to navigate in a subsequent criminal prosecution, former and current FBI officials told SaraACarter.com.
Retired FBI Supervisory Special Agent Jeff Danik said “during nearly thirty years at the FBI investigating law enforcement abuses, by far my biggest concern was that evidence originating from an officer’s compelled internal affairs statement would inadvertently seep into my criminal investigation.”
“It’s usually fatal,” added Danik.
“He should immediately stop making public comments about his discussions and coordination with the IG”
Multiple former and current FBI officials worried that Barr’s public comments regarding Horowitz’s investigation could affect future criminal prosecutions if the DOJ sought to bring charges. These law enforcement officials said at a very minimum, he should not be making public comments regarding the IG’s FISA investigation.
“He should immediately stop making public comments about his discussions and coordination with the IG; he should establish a taint team in a government office far away from Main Justice and demand that his criminal investigative team sever all contact with any IG employee or any member of the taint team; the taint team should review exactly who was interviewed by the IG, which witnesses provided compelled statements (probably the vast majority), and make sure to take serious steps to preserve the possibility of prosecuting FBI and DOJ officials if they committed wrongdoing,” said one former FBI official, who spoke on condition that they not be named. “After what the president and the country have been through, it would be a travesty for the guilty to get away with it because of governmental blundering.”
DOJ officials could not be reached immediately for comment.
The U.S. Supreme Court Case Referred To As Garrity
In the late 1960s the U.S. Supreme Court ruled in a case commonly referred to as Garrity, that statements given by law enforcement employees which were compelled by their employer under threat of being fired, are protected from being used against the employee in subsequent criminal prosecutions of the employee.
The Supreme Court said those compelled statements are protected under the U.S. Constitution’s Fifth Amendment provisions against self-incrimination. Garrity, through subsequent cases, evolved into having the real-world effect of rendering the compelled statements of all public employees, not just law enforcement officers, poisonous to subsequent use in criminal prosecutions that target the person who provided the compelled statement, Danik explained.
It is not certain if Horowitz has compelled witness statements for his investigation, according to numerous sources. His investigation and report have remained, on the whole, largely secretive with few leaks. The current investigations are focused on former FBI Director James Comey and the FBI’s handling of its investigation into President Trump and Russia is set to be publicly released within the next two weeks, according to sources.
“The IG routinely compels DOJ employees to give sworn statements to IG investigators, ” said Danik. “Very often, the penalty for an employee refusing to speak to the IG will result in the termination of their DOJ employment.”
Who Is Horowitz Interviewing
Horowitz is more than likely interviewing some of the same players he had interviewed during his previous investigations into the FBI’s handling of Hillary Clinton’s use of a private server to send classified government emails, as well as other Russia matters.
It’s probably a good bet that former FBI Special Agent Peter Strzok, former FBI Attorney Lisa Page and former FBI General Counsel James Baker have been interviewed by the inspector general. Further, former FBI Deputy Director Andrew McCabe and former Director of the FBI James Baker, along with many of the former senior staff, have been interviewed.
But there are still important witnesses within the bureau and DOJ, which have not been fired or resigned. One of them is, FBI Special Agent Joe Pientka, who was with Strzok at the White House when the pair interviewed former Lt. Gen. Michael Flynn in January, 2017. There’s also Department of Justice official Bruce Ohr, who is still with the department and whose wife was working for the embattled research firm Fusion GPS. Fusion GPS was the company that hired former British spy Christopher Steele to investigate the Trump campaign and Russia. Remember, it was the Democratic National Committee and the Clinton Campaign that paid Fusion GPS to hire Steele.
More than likely, both former and current FBI and DOJ officials have been and will be interviewed by Horowitz.
Barr has publicly spoken about Horowitz’s investigation publicly. Even though the statements appear to be innocuous former FBI officials say it can be dangerous waters to tread.
“I talked to Mike Horowitz a few weeks ago about it,” said Barr several weeks ago, referring to the investigation. “It’s focused on the FISA, basis for the FISA and handling of the FISA applications. But by necessity, it looks back a little earlier than that. The people helping me with my review will be working very closely with Mr. Horowitz.”
Therefore, Barr’s direct, or derivative use of statements in the IG report could be fatal to him prosecuting responsible officials, Danik said.
“Attorney General William Barr told Congress he was ‘working very closely’ with the Justice Department’s Inspector General Michael Horowitz as they both conduct investigations into the investigators who ran the Trump-Russia investigation at the DOJ and FBI,” added Danik.
“No reason to assume the Inspector General is compelling them to give statements”
Civil rights and criminal defense attorney David Schoen told SaraACarter.com the concern among law enforcement officials is understandable with regard to what is known as “taint.”
“There’s no reason to assume the Inspector General is compelling them to give statements, ” said Schoen. “I think some of the people Horowitz has been interviewing are former agents and that makes a difference.”
Taint occurs, for example, when witnesses are “put in a position where they take the fifth and their job is put in jeopardy if they don’t answer questions. It could potentially taint the use of their testimony.
Schoen said, “Horowitz is a smart guy, he’s been doing this for a long time and he’s been a prosecutor in cases involving official misconduct before. He was a prosecutor in the Southern District of New York with corrupt DEA agents. Horowitz clearly understands these complications — he’s experienced with investigating corrupt agents.”
Danik said nothing should be taken for granted, “especially in a case this sensitive.” He stressed the alleged level of criminality, among senior law enforcement and DOJ officials, makes it imperative that no lines are crossed in an effort to protect possible criminal prosecution.
Information derived from compelled statements
In 2017 the DOJ received a stinging, embarrassing reminder, and arguably an expanded application of who is covered by Garrity protections, when information derived from compelled statements leaked into the criminal prosecution of two United Kingdom bankers that the DOJ convicted after a trial in Manhattan, said Danik.
He said the “Second Circuit ruling dismissing the LIBOR convictions was a bombshell to DOJ and they have tough lessons to re-learn. It’s no longer business as usual when parallel criminal and civil investigations are being conducted.”
The U.S. Court of Appeals for the Second Circuit minced no words in a unanimous decision reversing the convictions of the bankers saying that compelled testimony, “cannot be used to secure a conviction in an American court.”
Critical to realize in the recent bankers’ prosecution: “the bankers were U.K. citizens, not U.S. citizens, and their statements were not compelled by the U.S. government, but by the U.K. government,” said Danik.
“The Second Circuit emphatically ruled that even a foreign citizen’s statements, compelled by a foreign government, were covered by the U.S. Constitution’s Fifth Amendment privileges,” he said. “So surely compelled statements by DOJ officials made to the U.S. government’s DOJ IG would be protected.”
Schoen noted that Barr is well versed in the law and so is Horowitz. Both may be navigating the minefield without any issues.
“It’s best to get everything out there,” said Schoen. “Horowitz certainly knows what he’s doing and so does Barr but this is a legitimate concern, especially among law enforcement officials who’ve seen cases go sideways for just this reason.”