Prepared Senate Floor Statement by Senator Chuck Grassley of Iowa
Chairman, Senate Judiciary Committee
Bipartisan Congressional Oversight
December 6, 2017
Mr. President, I have been doing oversight of the executive branch for a very long time.
I’ve done it as a Ranking Member. I’ve done it as a Chairman. I’ve done it when my party held the White House. And, I’ve done it when the other party held the White House.
Earlier this year, I stood up for the rights of my Democrat colleagues to do oversight of the Trump administration, even while they are in the Minority. I did it because it was the right thing to do.
Lots of people give lip service to the notion of bipartisan oversight, but very few actually practice it. It’s tough. You have to be willing to work with colleagues in the other party to ask tough questions of your own political allies. And you can’t just ask. If you actually want the answers, you have follow through.
True bipartisan oversight is impossible unless it is a two way street. If Democrats are unwilling to ask hard questions and force answers from their own political allies, then there simply is no way to move forward together in good faith. Both sides need to be committed to getting the whole story—not just the half that they think helps their side. Regardless of whether my Democrat colleagues join me or not, I am interested in the whole story.
There are two major controversies plaguing the credibility of the Justice Department and the FBI right now: the Trump/Russia investigation and the handling of the Clinton investigation. Any Congressional oversight related to either one of these topics is not credible without also examining the other.
Both cases were active during last year’s campaign. Both cases have been linked to the firing of the FBI Director.
I have been trying to explain this to my Democrat colleagues for months. The political reality is that half the country thinks that our law enforcement establishment gave Hillary Clinton and her aides a pass.
These questions go to the heart of the integrity of our federal law enforcement and justice system. They are not going away just because Clinton lost the election. The independent Inspector General at the Justice Department certainly isn’t ignoring them.
Democrats and Republicans in Congress have asked him to look into a host of issues involving the handling of the Clinton investigation during the campaign. His hard work has already uncovered some pretty disturbing information.
Over the past week, the press has reported that an FBI agent was removed from the Special Counsel’s team and demoted at the FBI due to political bias. The agent was at the very center of both of these high profile investigations.
High-ranking FBI Agent Peter Strzok reportedly used his work phone to send anti-Trump and pro-Clinton text messages to another FBI agent with whom he was having an illicit relationship. This man was the deputy assistant director for the FBI’s counterintelligence division. He worked on the investigation of former Secretary of State Hillary Clinton’s use of a private server to conduct official business.
According to news reports and documents, it looks like he also helped draft Comey’s controversial public statement ending that case. Specifically, he apparently edited out language that suggested legal jeopardy for Clinton.
Press reports also state that he opened the FBI’s investigation of allegations of collusion between the Trump campaign and Russia. And it’s been reported that he was one of the two FBI agents who interviewed former National Security Advisor Michael Flynn.
Can you imagine if the shoe were on the other foot?
What if a high ranking FBI official got caught expressing pro-Trump political bias on his work phone while leading what is supposed to be a professional, objective, and non-partisan search for the truth? Democrats would go ballistic, and they would have every right to.
This man held a crucial position of public trust, charged with protecting this country from counterintelligence threats. He was a key part of Director Comey’s Clinton investigation and his Russia investigation.
I have been saying for months that these two cases are forever linked. You cannot separate them. The same people in the same agency handled both cases at the same time. And now, a huge segment of the American people have no faith that these cases were treated impartially.
I don’t blame them.
It is interesting that before he was fired, FBI Director Comey lectured the Judiciary Committee and the public about how the men and women of the FBI “don’t give a rip about politics.” I believe that for most of the hard working, rank-and-file FBI agents that is absolutely true. Their jobs normally don’t involve controversial political questions, and their own political views aren’t relevant. They are professionals.
But no human is perfect, and no organization is immune from error. It does no good for the leaders of the FBI to pretend that its senior management is above all reproach—that they would never show any improper political bias and would never make mistakes.
The only way to protect against bias or misconduct is to recognize it exists and confront it—not to hide it from Congress and the American people. The law and the facts—whatever they are—should guide the work of the FBI and the Justice Department. If politics infected the Department’s decisions during a hotly contested national political campaign, we have to look at it.
That is true whether it occurred in the Clinton case or the Trump/Russia case—or both. Anyone claiming to do bipartisan oversight of the Executive Branch has to examine both. Ignoring either half of this story simply won’t be credible with half the country.
Everyone thought Hillary Clinton was going to be President. And the perception of a huge segment of the public is that the whole Washington establishment worked overtime to get her name cleared before the Democrat convention last summer. The FBI even called its case “Mid Year Exam.” Director Comey testified that the former Attorney General refused to even name the FBI’s work an “investigation.” She insisted on calling it a “matter”—whatever that means.
We’ve learned that Director Comey started drafting his exoneration statement long before the investigation was done. It looks like there was a rush to clear her. It looks like the fix was in.
I know Democrats don’t want to hear that. They only want to talk about Trump.
There is a double standard here in the way they desperately want to go after the President but ignore all other potential wrongdoing in the previous administration.
But Democrats have visions of impeachment dancing in their heads. Rather than reserve judgment and carefully examine the facts—all the facts—they are jumping to all sorts of conclusions.
The Judiciary Committee has an obligation to do a deep dive into the firing of James Comey and both of the two controversial political investigations that preceded it. Unfortunately, Democrats are preventing any truly bipartisan path forward. They appear to be assuming the conclusion at the outset.
They complain publicly and privately that I’m not doing enough to investigate “obstruction of justice.” But “obstruction of justice” is a legal term of art. It is a conclusion – not evidence.
That is not how I conduct my investigations. I do not make my conclusions first and try to shoe-horn the facts to fit my conclusion. I try to get the facts, and then go where they lead.
Let’s consider examples of where investigations have uncovered facts that point to “obstruction.”
Bill Clinton and Richard Nixon both lied to investigators. That is “obstruction.” And that behavior got one of them impeached and forced the other to resign.
We also recently learned that Hillary Clinton’s lawyers used a program called BleachBit to delete 33,000 emails under subpoena by the House of Representatives. Now those government records can never be recovered. Those facts certainly look a lot like obstruction. But we don’t have all the facts here yet.
So far, I have seen no credible evidence that President Trump has told anyone to lie. I also have seen no credible evidence that he or his aides have destroyed records being sought by investigators.
Many people firmly believe that the President fired the FBI Director in order to improperly halt an investigation of Lt. Gen. Flynn. Now, I am not only willing, but I am eager to delve deeply into all the circumstances surrounding Director Comey’s removal. But to claim at the outset that his removal was “obstruction of justice” puts the cart before the horse.
I’d like to place an article in the record at this point by a well-known liberal law professor, Alan Dershowitz. He’s certainly not fan of Donald Trump. And he and I probably wouldn’t agree on very much generally speaking.
The title of his article is: “Senator Dianne Feinstein may be provoking a constitutional conflict.”
Professor Dershowitz strongly disagrees with the Ranking Member’s statement on Meet the Press this weekend that Comey was fired:
...directly because he did not agree to lift the cloud of the Russia investigation, that’s obstruction of justice.
The Professor replied directly:
No, it isn’t.
…under our constitutional system of separation of powers, the president cannot be charged with a crime for merely exercising his authority under Article 2 of the Constitution. This authority includes firing the director of the FBI, for whatever reason or no reason.
That’s not to say that the President can engage in illegal conduct. But the professor’s point, as I understand it, is that when a president takes an action that is within the scope of his clear constitutional authority and discretion, it should be a political question not a criminal one.
The Judiciary Committee still needs to investigate the circumstances surrounding Comey’s firing and the Flynn investigation. Those facts may have nothing to do with obstruction but could still provide important insight about potential reforms to how the FBI and Justice Department operate.
He explains how President Trump could have halted any investigation of Flynn if he really wanted to:
Trump would have been within his constitutional authority to pardon Flynn, as Flynn hoped he would do. That would have kept him from cooperating with the special counsel and becoming a government witness. Had the president done that, he would have acted entirely lawfully, as President George H. W. Bush did when he pardoned Caspar Weinberger in order to stop the Iran-Contra investigation. Although special prosecutor Lawrence Walsh complained bitterly that the Bush presidential pardon had the intent and effect of completely closing down his investigation, no one suggested that Bush had committed the crime of obstruction of justice.
Then finally, Professor Dershowitz explains what real obstruction looks like, and how it is different than a president merely exercising his Constitutional authority:
Both Presidents Richard Nixon and Bill Clinton were accused of obstruction of justice, but in both cases they were accused of going well beyond the mere exercise of their constitutional authority. Nixon was accused of telling subordinates to lie to the FBI, paying hush money to potential witnesses, and destroying evidence. Clinton was accused of trying to get witnesses, such a Monica Lewinsky, to lie. These charges constitute acts — independent crimes — that go well beyond a presidential authority. Trump has not been accused of any acts that would independently constitute crimes. The entire case against him, as outlined by Feinstein, consists of constitutionally authorized acts that were well within the president’s authority under Article 2. That is an enormous and consequential difference under our system of separation of powers.
But, our constitutional system of checks and balances is too important to throw it aside when it isn’t politically convenient. You don’t have to be a Trump fan to worry about the consequences of taking short cuts in going after your political opponents.
That’s why bipartisan investigations can be so valuable. When it works, a bipartisan inquiry can provide comfort that all angles have been explored thoroughly. But, it takes two to tango, as they say.
Earlier this year, Ranking Member Feinstein expressed concerns about reports that former Attorney General Lynch asked Director Comey to downplay the FBI’s Clinton investigation as merely, a “matter” during the campaign. Yet, since then, the Ranking Member has told me plainly she won’t join in any oversight of the FBI’s Clinton email investigation.
Even on Trump/Russia oversight, where we have been able to cooperate a great deal, there have been similar problems.
First, all year, I have wanted to learn more about the origins of the dossier that largely kickstarted FBI’s investigation of the Trump campaign. In July, the Ranking Member joined me in a bipartisan letter seeking voluntary cooperation from the firm that produced the dossier.
The dossier was based largely on Russian sources within Russia, and was put together by a former British spy. It made salacious and unverified claims about Trump. The company responsible for producing it, Fusion GPS, was uncooperative.
In response to our bipartisan request, it dumped on the Committee about 32,000 pages of press clippings and 8,000 pages that were entirely blank. Since then, it has provided zero additional documents.
The founder of Fusion GPS initially indicated he would rely on his Fifth Amendment right against self-incrimination rather than testify at the Committee’s hearing in July. He later agreed to a private staff interview, but refused to answer dozens of key questions.
I would like to compel him to answer questions and compel him to provide the documents that Senator Feinstein and I both asked him in July to provide voluntarily. But, under our Committee’s rules, I don’t have the authority to do that on my own.
Now, why would Democrats not want to follow-up and get the documents from Fusion GPS that we already asked for together? Do they not want to know more about how this company put together its anti-Trump dossier from Russian government sources?
Well, in light of recent news, the resistance from Democrats to this line of Trump/Russia inquiry is now a little more understandable. It turns out, the Clinton campaign and the DNC are the ones who paid Fusion GPS for the information it gathered from Russian government sources.
I don’t know whether the Ranking Member or her staff knew that fact earlier this year when I was trying to persuade her to do bipartisan follow-up with Fusion GPS. But, I do know that unless both sides are willing to ask tough questions, no matter where the facts lead, there can be no bipartisan oversight.
So, we have learned that the DNC paid for an anti-Trump dossier based on information from Russian government sources.
Second, we have learned that the Inspector General uncovered evidence of partisan bias by a senior FBI official at the center of both the Clinton and Trump/Russia investigations, which led to his dismissal from Mueller’s team.
Before that news broke, back in October I wrote to that FBI official requesting voluntary cooperation and a private transcribed interview with the Committee. The Ranking Member did not sign that letter.
The Committee has received no letter in reply. We are still waiting for documents from the FBI about his and other officials’ participation in the draft Comey statement.
The FBI should comply voluntarily, but if they don’t I would issue a subpoena to require that the documents be provided and that the witness sit for a deposition. However, under our Committee rules, I don’t have the authority to do that on my own.
Finally, I have long had concerns that the scope of the FBI’s Clinton investigation was artificially narrowed. Recent revelations about these text messages showing political bias only heighten those concerns.
In recent federal court filings, the FBI said that the scope of the investigation was limited in two ways. First, it was limited to two issues dealing only with the handling of classified information. Second, the scope of the FBI’s review was limited to the time when former Secretary Clinton was at the State Department.
But what if there was evidence of crimes not related to the mishandling of classified information? What if the facts showed some obstruction, such as intentional destruction of documents after she was Secretary of State?
Why exclude those topics from the scope of the inquiry? Who made those decisions and why? Was there any political bias in those decisions?
Certain areas shouldn’t be declared off-limits beforehand in an investigation. An investigation should go where the facts take it.
In multiple letters to the FBI last year, I raised concerns about the scope of the FBI’s investigation. I asked Director Comey back in May of 2016 whether the Justice Department had improperly narrowed the scope of the investigation to only look at mishandling of classified information and ignore other important legal issues.
I want to quote from that letter:
If federal records on the private server were hidden or destroyed, then there may have been a violation of 18 U.S.C. § 2071, which prohibits concealing or destroying such federal records.
If any of the deleted emails were responsive to Congressional inquiries or to agency inquiries, such as ones from the State Department Inspector General, then there may have been violations of 18 U.S.C. §§ 1505 and 1519, respectively.
Later in my letter, I specifically asked whether the Justice Department limited the scope of the FBI’s investigation in any way.
Then-Director Comey eventually responded months later. He claimed the FBI did investigate whether the unlawful destruction of federal records occurred. But, an FBI agent said under penalty of perjury that the FBI investigation DID NOT include destruction of federal records.
So, which is it? Who’s telling the truth? The FBI agent that signed the affidavit or Mr. Comey?
Did the FBI really examine whether Secretary Clinton and her associates used the server avoid federal records retention requirements? Or did Mr. Comey simply pay lip-service to that concern and focus only on classification issues?
Understanding what really happened is incredibly important. And here’s why.
During the course of the FBI’s investigation, it recovered thousands of work-related emails that were not turned over to the State Department by Secretary Clinton. The FBI also recovered work-related emails that Secretary Clinton and her associates apparently deleted. All of this is clear evidence of alienation of federal records.
Indeed, even the FBI’s now-public investigative files show that the FBI had knowledge that federal records were deleted. The FBI’s interview summary of Secretary Clinton said that she was asked about “a PRN work ticket, which referenced a conference call among PRN, Kendall, and Mills on March 31, 2015.”
PRN stands for Platte River Networks, the company that administered Secretary Clinton’s non-government server. Kendall is David Kendall, her attorney. And Mills is Cheryl Mills, her former Chief of Staff at the State Department.
Paul Combetta, the administrator of her server, was also on the conference call and was interviewed multiple times by the FBI. He admitted he lied to the FBI in his initial interviews, and got immunity from the FBI in exchange for agreeing to tell them the truth. According to the summary of that interview, Mr. Combetta deleted Secretary Clinton’s email archives on March 31, 2015.
So, you have a conference call with Secretary Clinton’s attorneys on March 31, 2015 and on that very same day her emails are deleted by someone who was on that conference call using special BleachBit software.
The emails were State Department Records under subpoena by Congress.
What did the FBI do to investigate this apparent obstruction? According to affidavits filed in federal court – absolutely nothing. The FBI focused only on the handling of classified information.
Maybe now we know why.
Recently released FBI records show that by May 2, 2016, Mr. Comey sent around a draft of his statement exonerating Secretary Clinton. The FBI interview with Mr. Combetta hadn’t happened yet.
The exoneration statement was already in progress before the key witness had coughed up the truth about deleting federal records under subpoena by Congress.
Did the FBI look at obstruction in the Clinton case? Mr. Comey says that the FBI looked “very hard” at obstruction. But that is hard to believe.
Director Comey began drafting the exoneration statement in April or early May of 2016. That’s months before he publicly announced he would not recommend charges on July 5, 2016.
According to the testimony of senior FBI officials, Comey began drafting his statement early because the FBI knew where the investigation was headed.
But at that point, the FBI had not yet interviewed 17 witnesses. One of them was Secretary Clinton. Others included her closest aides and associates.
How can you possibly know where an investigation is headed without interviewing the main witnesses and the subject of the investigation?
Maybe none of this raises any concerns for Democrats, but it should. The American people deserve to have the whole story. Congress and the public have a right to understand whether the fix was in from the beginning.
If so, then we must take steps to make sure it never happens again.
I yield the floor.