FBI Director James Comey and Deputy Director Andrew McCabe may have violated multiple existing Justice Department rules controlling contacts between the bureau and White House officials when they spoke earlier this month with White House Chief of Staff Reince Priebus about their ongoing investigation into Russia’s influence operation against the 2016 U.S. presidential election, according to several former senior Justice Department officials.
The first questionable contact came when McCabe spoke with Priebus for five minutes after a 7:30 a.m. meeting at the White House on Feb. 15 on an unrelated intelligence issue. The day before, the New York Times had reported that Trump’s campaign and other Trump associates had multiple contacts with known agents of Russian intelligence in the year before the election.
At the White House meeting, McCabe told Priebus, ‘I want you to know story in NYT is BS," according to senior Administration officials who briefed reporters on Feb. 24.
Priebus asked McCabe what could be done to push back, saying the White House was “getting crushed” on the story. McCabe demurred, and then later called back to say, “We'd love to help but we can't get into the position of making statements on every story.”
FBI Director James Comey later called Priebus himself and repeated McCabe’s statements about the New York Times story. Comey also said he was unwilling to speak publicly about the piece but agreed to let Priebus cite senior intelligence officials in his pushback, the officials said.
The back-and-forth may have broken internal rules in place for decades, according to former officials.
After President Nixon's scandals in the early 1970s, the Carter Administration imposed rules designed to prevent the FBI from meddling in politics, and to keep politicians from meddling in criminal investigations. In Bill Clinton’s first term, Attorney General Janet Reno limited contacts between the White House and law enforcement regarding criminal investigations to the top three officials at the Justice Department on the one hand and the President, Vice President and the top two White House lawyers on the other. George W. Bush loosened those limits after 9/11, but after a series of scandals, his last Attorney General, Michael Mukasey reimposed them. Those limits were again adopted by the Obama Administration in a 2009 memo by then-Attorney General Eric Holder.
Matt Miller, a Holder aide, says "that memo directs that contacts between the White House and the Justice Department be funneled through the White House counsel's office to the AG or Deputy Attorney General's office precisely so there can be no inappropriate tampering with investigations. If McCabe and Comey told Priebus about what was happening in an ongoing investigation into the president's associates, they clearly violated that guidance and crossed a major line."
Those limits aren't the only rules Comey and McCabe may have violated. There are also longstanding written controls, based on authority given to the Attorney General under an executive order issued by Ronald Reagan in 1981 and on several statutes, that require the Attorney General’s approval for most contacts between the FBI and the White House regarding foreign intelligence matters that involve domestic political activities.
Those rules say that, “Compromising information concerning domestic officials or political organizations, or information concerning activities of United States persons intended to affect the political process in the United States, may be disseminated to the White House only with the approval of the Attorney General, based on a determination that such dissemination is needed for foreign intelligence purposes, for the purpose of protecting against international terrorism or other threats to the national security, or for the conduct of foreign affairs.”
Neither the Justice Department nor the FBI would comment on whether the Attorney General approved the contacts between the FBI’s leaders and the White House. White House spokesman Sean Spicer told reporters on Feb. 24 that there was a “carve-out” for public affairs communications. The Holder memo does exempt “officials in the communications, public affairs, or press offices of the White House and the Department of Justice from communicating with each other to coordinate efforts.”
But the Holder rules also explicitly say that “pending adversary cases in litigation that may have national security implications” are not exempt from the rules.
Several former Justice Department officials from both political parties, speaking anonymously, said they believed the contacts violated those rules, but none would speak on the record. Democratic House Leader Nancy Pelosi called Friday for an investigation by the Justice Department’s Office of the Inspector General into the contacts between the FBI and the White House.
The DOJ's Inspector General, Michael Horowitz, has already launched a broad investigation of the FBI and the Justice Department’s actions during the 2016 election. That investigation includes Comey’s handling the FBI probe of Hillary Clinton’s emails, and the meeting held between then-Attorney General Loretta Lynch and Bill Clinton during that investigation in July, Horowitz told Congress on Feb. 1.