Justice Department’s Rosenstein Threatens Legal Pushback Against Congress Oversight

By Petr Svab
Petr Svab
Petr Svab
Petr Svab is a reporter covering New York. Previously, he covered national topics including politics, economy, education, and law enforcement.
June 13, 2018 Updated: October 5, 2018

Deputy Attorney General Rod Rosenstein threatened to subpoena emails and phone records of lawmakers and their staffers amid his stonewalling of their efforts to perform oversight of the  Department of Justice (DOJ), according to emails obtained by Fox News.

Rosenstein made the threat during a January 2018 closed-door meeting attended by top DOJ and FBI officials as well as House Intelligence Committee Chairman Devin Nunes (R-Calif.) and three committee staffers, two staffers said in emails reporting Rosenstein’s conduct to the House Office of General Counsel.

Nunes has been requesting certain documents from the DOJ for over a year and seems to have been losing patience with the department.

“DOJ continues to obfuscate and delay its production using an array of tactics,” he wrote in a June 8 letter to Rosenstein.

But in January, Rosenstein went beyond obfuscation, according to the staffers.

“[Rosenstein] criticized the Committee for sending our [document] requests in writing and was further critical of the Committee’s request to have DOJ/FBI do the same when responding … going so far as to say that if the Committee likes being litigators, then ‘we [DOJ] too [are] litigators, and we will subpoena your records and your emails,’ referring to [House Permanent Select Committee on Intelligence] and Congress overall,” wrote Kash Patel, the committee’s then-senior counsel for counterterrorism, in an email to the Office of General Counsel.

Another staffer who was at the meeting seconded Patel’s statement: “Let me just add that watching the Deputy Attorney General launch a sustained personal attack against a congressional staffer in retaliation for vigorous oversight was astonishing and disheartening. … Also, having the nation’s #1 (for these matters) law enforcement officer threaten to ‘subpoena your calls and emails’ was downright chilling.”

The staffer acknowledged Rosenstein’s comments could also be understood as a defense against Nunes’s threat to hold Rosenstein in contempt of Congress for the stonewalling. But according to the staffer, there was more to it.

“I also read it as a not-so-veiled threat to unleash the full prosecutorial power of the state against us,” he wrote.

Both the FBI and the DOJ disagreed with the staffers’ portrayal of Rosenstein’s comments.

Rosenstein “never threatened anyone in the room with a criminal investigation,” a DOJ official told Fox News.

“The Deputy Attorney General was making the point—after being threatened with contempt—that as an American citizen charged with the offense of contempt of Congress, he would have the right to defend himself, including requesting production of relevant emails and text messages and calling them as witnesses to demonstrate that their allegations are false,” the official said.

“That is why he put them on notice to retain relevant emails and text messages, and he hopes they did so. (We have no process to obtain such records without congressional approval.)”

The Office of General Counsel already confronted Patel on that line of reasoning, but he rejected it.

“I took … it as [Rosenstein’s] clearly articulated course of action, should the committee continue its investigation in the current manner, which he found unacceptable and improper. It was not in response to how they would defend litigation (i.e., contempt or the like),” Patel wrote. “It was about leaks, source contact, and other alleged disclosures by the committee.”

Nunes told Fox in a statement that the incident has been referred to House Speaker Paul Ryan’s office.

“The Intelligence Committee considers staff concerns at the most serious level, especially those involving interactions with the executive branch. Based on the justified concerns expressed by our lead staff investigators, we referred this matter to the Speaker’s Office,” he stated.

A source “close to the speaker” told Fox that Ryan’s office “encouraged the Committee to work through the non-partisan DOJ Inspector General’s Office.”

Meanwhile, Rosenstein is firing back and “will request that the House General counsel conduct an internal investigation of these Congressional staffers’ conduct,” the unnamed DOJ official said.

What Nunes Wants

Nunes’s current request for documents is in the form of a classified letter. The details are not public, but it likely concerns an informant tasked with spying on the campaign of then-presidential candidate Donald Trump before the 2016 election as well as reasons for the surveillance.

Epoch Times Photo
House Permanent Select Committee on Intelligence Chairman Devin Nunes (R-Calif.) speaks to reporters during a press conference at the U.S. Capitol in Washington on March 22, 2017. (Win McNamee/Getty Images)

The DOJ pushed back against the request, arguing that “[d]isclosure of responsive information to such requests can risk severe consequences, including potential loss of human lives, damage to relationships with valued international partners, compromise of ongoing criminal investigations, and interference with intelligence activities,” according to a May 3 letter to Nunes from Assistant Attorney General Stephen Boyd.

But current and former government officials already leaked details identifying the spy to media, and he’s been de facto outed as American intelligence-linked professor Stefan Halper.

Halper’s role throws a wrench into the FBI’s narrative on why it started to spy on the Trump campaign.

The Epoch Times previously laid out how a select group of Obama-administration officials orchestrated an expansive spy operation against the Trump campaign that included national security letters—a type of secret subpoena—Foreign Intelligence Surveillance Act (FISA) warrants, at least one spy, the unmasking of American citizens in intelligence reports, and spying conducted by foreign intelligence agencies. A large amount of information obtained through the operation was illegally leaked to certain media.

Based on leaks to The New York Times, the FBI started probing the Trump campaign’s alleged links with Russia on July 31, 2016, after Australians had passed intelligence to the FBI earlier that month about a drunken conversation between volunteer Trump campaign adviser George Papadopoulos and the top Australian diplomat in Britain, Alexander Downer.

Downer said Papadopoulos told him that the Russians had “dirt” on Trump’s opponent in the election, Hillary Clinton.

But that rationale has fallen apart with the revelation that Halper was already snooping on the campaign before that date.

Moreover, the man who was supposed to tell Papadopoulos about the “dirt” on Clinton had extensive ties to Western intelligence.

In addition, text messages sent between top FBI officials Peter Strzok and Lisa Page suggest that the FBI initiated an offensive counterintelligence operation against the Trump campaign as early as December 2015.

Both the DOJ inspector general and the House intelligence committee are currently probing the FBI and DOJ officials involved and why they launched the spying operation.

Several officials have already been referred for criminal investigation. Specifically, a group of congressmen demanded an investigation on former FBI Director James Comey, former FBI Deputy Director Andrew McCabe, former Acting Attorney General Sally Yates, and former Acting Deputy Attorney General Dana Boente over their roles in signing a FISA warrant to surveil Trump campaign volunteer adviser Carter Page. The lawmakers accuse the four officials of depriving Page of his rights and of investigative misconduct.

The officials intentionally withheld from the FISA Court that the warrant application heavily relied on the now infamous Steele dossier, according to a memo by the Republican majority on the House intelligence committee.

The dossier was put together by Christopher Steele, a former MI6 British intelligence agent, using second- and thirdhand sources close to Kremlin. The dossier was characterized as “salacious and unverified” by Comey.

Steele was paid for his work by the Clinton campaign and the Democratic National Committee.

Nunes has given the DOJ until June 12 to produce the requested documents to the whole committee and select staffers. Rosenstein and others have offered to meet on June 14, but only with a group of congressional leaders known as the Gang of Eight, which consists of the leaders of both parties in the House and Senate, as well as the heads of the intelligence committees in both chambers.

Epoch Times reporter Ivan Pentchoukov contributed to this report.


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Petr Svab
Petr Svab is a reporter covering New York. Previously, he covered national topics including politics, economy, education, and law enforcement.