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May 31, 2017

VIA FACSIMILE TRANSMISSION

The Honorable Michael E. Horowitz


Inspector General
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530

Dear Inspector General Horowitz:

The Deputy Attorney Generals appointment on May 17 of a special counsel to oversee the
previously-confirmed FBI investigation of Russian government efforts to influence the 2016
presidential election and related matters was necessary and appropriate. 1 But it does not fully
address public concerns regarding the termination of Federal Bureau of Investigation (FBI)
Director James Comey and information that has come to light as a result of that termination.
Specifically, questions have been raised regarding the role of Senior Department of Justice
(DOJ) officials in Mr. Comeys firing.

Even if the special counsels investigation encompasses Mr. Comeys firing, the publics interest
in a full accounting of the propriety of the involvement of DOJ officials goes well beyond
potential criminal misconduct. We respectfully request that the DOJ Office of the Inspector
General (OIG) begin an investigation into possible abuse and misconduct in connection with Mr.
Comeys termination.

There is already significant public evidence, including the Presidents own statements,
suggesting that President Trump dismissed Mr. Comey because of his leadership of an
investigation into possible collusion between the Presidents advisors and Russian officials.
There is also significant public evidence of the involvement of senior Department of Justice
officials, including the Attorney General and the Deputy Attorney General, in that decision. This
is in spite of the fact that the Attorney General was recused from matters related to the FBI
investigation of the Trump campaign. If the actions of the Attorney General or Deputy Attorney

1
U.S. Department of Justice, Appointment of Special Counsel, news release, January 12, 2017,
https://www.justice.gov/opa/pr/appointment-special-counsel.

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General violated Department or executive branch rules or were otherwise improper, it would
raise serious questions about the ability of the Department to impartially address critical national
law enforcement issues, including issues relating to foreign interference in American elections.
This matter falls squarely within the Inspector Generals jurisdiction and is of vital importance to
the credibility of our democratic institutions and the rule of law. We respectfully submit that an
impartial investigation is necessary to restore public trust in federal law enforcement.

A. OIG Has the Authority to Investigate Mr. Comeys Termination

OIG plainly has jurisdiction to review this issue. The Office has regularly looked into the
termination of a political appointee based on improper political purpose[s], 2 and the hiring and
firing of Department personnel generally. 3 Such review is essential to ensuring that law
enforcement officials, even those appointed by the president, who are charged with administering
justice impartially, do so and are perceived to be doing so. 4 Moreover, OIG has investigated
these issues even when they have involved individuals in the White House. 5

An examination of Mr. Comeys termination also logically forms part of OIGs already
announced investigation of actions by the Department and the FBI in advance of the 2016
election, which is expected to focus on the treatment of Hillary Clintons emails. In announcing
that investigation, your office said that if circumstances warrant, the OIG will consider
including other issues that may arise during the course of the review. 6 The Presidents letter
terminating Mr. Comey was explicitly based on the recommendation of Attorney General Jeff
Sessions, which in turn relied on Deputy Attorney General Rosensteins memorandum criticizing
Mr. Comeys handling of the email investigation.

Special Counsel Robert Muellers investigation does not preclude your investigation into the
Departments role in Mr. Comeys termination. While the termination is fairly within the scope
of Special Counsel Muellers charge, 7 there is certainly no prohibition on OIGs investigation of
the same subject matter as the Departmentindeed, an inspector general may even cooperate
with a parallel Department investigation. 8 Moreover, it is especially appropriate for OIG to

2
U.S. Department of Justice Office of the Inspector General and U.S. Department of Justice Office of Professional
Responsibility, An Investigation into the Removal of Nine U.S. Attorneys in 2006, U.S. Department of Justice, 2008,
52, https://oig.justice.gov/special/s0809a/final.pdf.
3
U.S. Department of Justice Office of the Inspector General and U.S. Department of Justice Office of Professional
Responsibility, An Investigation of Allegations of Politicized Hiring and Other Improper Personnel Actions in the
Civil Rights Division, U.S. Department of Justice, 2008, https://oig.justice.gov/special/s0901/final.pdf.
4
As stated in the U.S. Attorneys Manual, the need for their impartiality in administering justice directly affect the
publics perception of federal law enforcement. U.S. Attorneys Manual 3-2.140.
5
See, e.g., U.S. Department of Justice Office of the Inspector General and U.S. Department of Justice Office of
Professional Responsibility, An Investigation into the Removal of Nine U.S. Attorneys in 2006, U.S. Department of
Justice, 2008, 2, https://oig.justice.gov/special/s0809a/final.pdf.
6
U.S. Department of Justice Office of the Inspector General, DOJ OIG Announces Initiation of Review, news
release, January 12, 2017, https://oig.justice.gov/press/2017/2017-01-12.pdf.
7
See Office of the Deputy Attorney General, Oder No. 3915-2017, Appointment of Special Counsel to Investigate
Russian Interference with the 2016 Presidential Election and Related Matters, May 17, 2017, available at
https://www.justice.gov/opa/press-release/file/967231/download.
8
See, e.g., U.S. Dept of Justice, Statement of Attorney General Eric Holder on Closure of Investigation into the
Interrogation of Certain Detainees, Aug. 30, 2012, available at https://www.justice.gov/opa/pr/statement-attorney-

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conduct its own investigation where, as here, there is a special need to avoid any appearance of
partiality, and the subject matter is of significant public interest. That interest extends beyond
whether criminal charges will be filed, making a public report that would result from your
investigation all the more important.

B. Publicly Available Information Raises Serious Concerns that Mr. Comey Was
Terminated to Thwart an Ongoing Investigation

There is ample publicly available evidence suggesting that President Trump dismissed Mr.
Comey to thwart the investigation into potential collusion between the Presidents associates and
the Russian governments established interference in the 2016 election, in support of then-
candidate Trump. In particular:
a) The President stated on national television that at the time he decided to remove Mr.
Comey, he was thinking about the investigation; 9

b) According to reports of a contemporaneous memorandum written by Mr. Comey


regarding an Oval Office meeting with the President in February, the President asked
Mr. Comey to end the FBIs investigation of former National Security Adviser Michael
Flynn;

c) Press reports also suggest that Mr. Comey was fired because the President was
dissatisfied with Mr. Comeys refusal to pledge loyalty to him, 10 and that the termination
occurred shortly after Mr. Comey requested more resources for the investigation related
to Russia from Deputy Attorney General Rod Rosenstein; 11

d) As reported by the New York Times, according to an interview with a friend of Mr.
Comey, Benjamin Wittes, the President on multiple occasions behaved inappropriately
with respect to the independence of the FBI; 12 and

e) The President publicly condemned and belittled the investigation on several occasions, 13
and published tweets that seemed to be threatening Mr. Comey. 14

general-eric-holder-closure-investigation-interrogation-certain-detainees (discussing Department Special Counsel


John Dunhams oversight of an investigation relying in part on findings of the CIA Office of Inspector General).
9
David Smith, Julian Borger, and Lauren Gambino, Donald Trump Admits This Russia Thing Part of Reasoning
for Firing Comey, The Guardian, May 12, 2017, accessed May 15, 2017, https://www.theguardian.com/us-
news/2017/may/11/donald-trump-james-comey-firing-russia-investigation.
10
See. Michael S. Schmidt, In a Private Dinner, Trump Demanded Loyalty. Comey Demurred. New York Times,
May 11, 2017, accessed May 15, 2017, https://www.nytimes.com/2017/05/11/us/politics/trump-comey-firing.html.
11
Matthew Rosenberg and Matt Apuzzo, Days Before Firing, Comey Asked for More Resources for Russia
Inquiry, New York Times, May 10, 2017, accessed May 10, 2017,
https://www.nytimes.com/2017/05/10/us/politics/comey-russia-investigation-fbi.html.
12
Michael S. Schmidt, Comey, Unsettled by Trump, Is Said to Have Wanted Him Kept at a Distance, New York
Times, May 18, 2017, https://www.nytimes.com/2017/05/18/us/politics/james-comey-memo-fbi-trump.html.
13
E.g. The Associated Press, The Latest: Trump Calls Russia Probe 'a Total Hoax', New York Times, May 8, 2017,
accessed May 15, 2017, https://www.nytimes.com/aponline/2017/05/08/us/politics/ap-us-trump-russia-congress-the-
latest.html.

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While the President has the authority to terminate the director of the FBI, he may not use this
power arbitrarily or capriciously to thwart a law enforcement investigation into his associates,
nor as punishment for failure to swear fealty. As your office has stated before, appointees can
be removed by the President for any reason or for no reason, as long as it is not an illegal or
improper reason. 15 Department officials and staff similarly may not act in furtherance of those
objectives. The only other time an FBI director was terminated was on the basis of well-
documented ethics violations. 16

C. Public Information Raises Serious Concerns about the Propriety of Senior


Department Officials Conduct in Connection with Mr. Comeys Termination

There is a strong basis to question the propriety of the involvement of senior Department
officials in that termination. In particular:

a) The Attorney General recommended that the President fire Mr. Comey despite having
stated that he would recuse himself from any existing or future investigations of any
matters related in any way to the campaigns for President due to concerns about his own
contacts with Russian officials; 17

b) Department leadership submitted a written recommendation and supporting


memorandum and President Trump terminated Mr. Comey all on the same day, despite
the fact that the conduct for which they criticized Mr. Comey took place over six months
ago. This suggests as the President himself confirmed on national television that the
decision was preordained and that the Departments written recommendations, reportedly
requested just the day before, 18 were pretextual and not the basis for the decision;

c) According to media reports, senior officials at the Department had been instructed to find
reasons to terminate Mr. Comey; 19 and

14
Eugene Scott, Trump Threatens Comey in Twitter Outburst, CNN, May 12, 2017, accessed May 15, 2017,
http://www.cnn.com/2017/05/12/politics/donald-trump-james-comey-threat/.
15
U.S. Department of Justice Office of the Inspector General and U.S. Department of Justice Office of Professional
Responsibility, An Investigation into the Removal of Nine U.S. Attorneys in 2006, U.S. Department of Justice, 2008,
325, https://oig.justice.gov/special/s0809a/final.pdf
16
Colleen Shalby, The Last President to Fire an FBI Director? Bill Clinton, Los Angeles Times, May 9, 2017,
accessed May 15, 2017, http://www.latimes.com/politics/washington/la-na-essential-washington-updates-last-fbi-
director-to-get-fired-before-1494368709-htmlstory.html.
17
Ari Melber, Meredith Mandell, and Diana Marinaccio, Did AG Sessions Violate His Recusal by Advising on
Comey Firing?, NBC News, May 10, 2017, accessed May 10, 2017, http://www.nbcnews.com/news/us-news/did-
ag-sessions-violate-his-recusal-advising-comey-firing-n757576.
18
Anita Kumar, Trump Asked for Comey Memo after Oval Office Meeting, McClatchy DC, May 10, 2017,
accessed May 10, 2017, http://www.mcclatchydc.com/news/politics-government/white-
house/article149717999.html.
19
Maggie Haberman, Glenn Thrush, Michael S. Schmidt, and Peter Baker, Enough Was Enough: How Festering
Anger at Comey Ended in His Firing, New York Times, May 10, 2017, accessed May 11, 2017,
https://www.nytimes.com/2017/05/10/us/politics/how-trump-decided-to-fire-james-comey.html.

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d) Mr. Comey was terminated immediately after the reported intensification of the FBIs
Russia probe with the issuance of grand jury subpoenas and a request to Deputy Attorney
General Rosenstein for additional resources for the investigation.

D. An Independent Review of the Facts is Critical to Restore Confidence in the


Department of Justice and the FBI

In light of the broad public concerns raised by this evidence, an independent, objective, non-
partisan review is vital to restoring confidence in the impartiality of the Department, as well
maintaining the integrity of our elections. Accordingly, we respectfully request that you conduct
a review sufficient to answer the following questions:

1. Even appointees serving at the pleasure of the President may not be terminated for
improper reasons, 20 especially not to impede law enforcement. Conflicting accounts have
emerged over the timing and basis for Mr. Comeys termination. Notably, the Deputy
Attorney Generals memorandum, the Attorney Generals recommendation, and the
Presidents decision were all dated the same day. Initially the White House indicated the
President decided to terminate Mr. Comey based on the Deputy Attorney Generals
memorandum; however, the President subsequently stated that he had been planning to
terminate Mr. Comey for some time. In light of the evidence discussed above, we ask:
a. When did the Attorney General and the Deputy Attorney General determine that
Mr. Comey should be terminated?
b. When did the Attorney General and the Deputy Attorney General learn that the
President planned to terminate Mr. Comey?
c. Who in the Department besides the Attorney General and Deputy Attorney
General participated in the decision to terminate Mr. Comey or the
implementation of the Presidents plan to terminate Mr. Comey?

2. Government employees are generally obligated to recuse themselves from investigations


where they have a personal or political relationship with (1) the person or organization
being investigated; or (2) a person or organization they know have a specific and
substantial interest that would be directly affected by the investigations outcome. 21
Publicly available evidence suggests the Attorney General may have had such a
relationship with respect to the investigation Mr. Comey oversaw. In light of the evidence
discussed above, we ask:
a. Was the Attorney Generals involvement in the decision to terminate Mr. Comey
proper? Should the Attorney General have been recused from the decision
pursuant to 28 C.F.R. 45.2, or any other authority?
b. Was the Attorney Generals participation in the termination inconsistent with the
scope and spirit of his recusal from matters that relate in any way to the 2016
campaigns for president?

20
See U.S. Department of Justice Office of the Inspector General and U.S. Department of Justice Office of
Professional Responsibility, An Investigation into the Removal of Nine U.S. Attorneys in 2006, U.S. Department of
Justice, 2008, 325, https://oig.justice.gov/special/s0809a/final.pdf.
21
28 C.F.R. 45.2.

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c. By what process, if any, did the Attorney General assess that his participation in
the termination was permitted?

3. Several provisions of federal law, including 18 U.S.C. 1512, 1519, 1503, 1505, and
371, prohibit the obstruction of justice, by individuals or as part of a conspiracy. Though
the elements of the various prohibitions differ, all focus on ensuring that government
proceedings, including FBI investigations, are unimpeded and free from improper
influence. Publicly available evidence suggests Department officials and others
communicating with them may have been involved in efforts to obstruct the FBIs
investigation, and that Mr. Comeys termination may relate to those efforts. In light of the
evidence discussed above, we ask:
a. Were the Attorney General or senior Department officials involved in any effort
to obstruct the FBIs investigation into the ties between Mr. Trumps associates
and Russian interference in the 2016 election?
b. Does the conduct of any of these officials violate any federal criminal or civil law
or government policy relating to the obstruction of justice?
c. Was the Attorney Generals recommendation to terminate Mr. Comey based upon
the reasons provided in the Deputy Attorney Generals May 9 memorandum, or
for other reasons?
d. Was the Mr. Comeys termination connected to the FBIs request for more
resources for the Russia-related investigation?
e. Why was Mr. Comey fired more than six months after the conduct that
purportedly caused his dismissal?

The public would benefit from expeditious answers to these questions. OIG has a reputation for
thoroughly investigating allegations of misconduct in the termination of government officials.
We look forward to your offices findings.

Sincerely,

Wendy Weiser, Director Austin Evers, Executive Director


Adam Gitlin, Counsel American Oversight
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