Journalist Sara Carter has a piece up at her website citing FBI officials who warn that if Attorney General William Barr intends to use the upcoming Inspector General Michael Horowitz’s report into FISA abuses to make arrests, he needs to immediately desist making public comments about it so it doesn’t “taint” his effort to bring charges.
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.”
Carter notes that under a Supreme Court act known as Garrity, compelled statements from law enforcement officers under threat of being fired cannot be used against them. “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,” Carter notes.
While the IG report has been kept very much under wraps, there are several former DOJ employees Horowitz has likely interviewed such as FBI Special Agent Peter Strzok, former FBI Attorney Lisa Page and former FBI General Counsel James Baker. Former FBI Deputy Director Andrew McCabe and former Director of the FBI James Baker, as well as former senior staff, have been interviewed.
But, notes Carter, many more witnesses remain at the DOJ that might end up in the IG report.
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.
Because Barr has spoken publicly about the IG report — saying he had spoken to the IG about his report and was aware of its focus on FISA abuse — FBI officials worry, though his statements are innocuous, they could run afoul of the Garrity standard.
“Therefore, Barr’s direct, or derivative use of statements in the IG report could be fatal to him prosecuting responsible officials,’ Danik said.”
The good news is, both Barr and Horowitz are well-versed in the law and capable at their jobs, so they may be able to predict potential minefields successfully. But it would certainly be a shame is some offhand comments kept Barr from bringing charges based on a technicality.
Horowitz’s report is rumored to be on the verge of release within the next few weeks.