September 26, 2017

Dear Attorney General Sessions and Deputy Attorney General Rosenstein:

We write to renew this Committee’s recent call for a second special counsel, to investigate matters which may be outside the scope of Special Counsel Robert Mueller’s investigation.

Such a step is even more critical given the recent revelation that former FBI Director James Comey had prepared a statement ending the investigation into former Secretary of State Hillary Clinton, before interviewing at least 17 key witnesses, including the former Secretary herself. At least one former career FBI supervisor has characterized this action as “so far out of bounds it’s not even in the stadium,” and “clearly communicating to [FBI executive staff] where the investigation was going to go.”

Among those witnesses the FBI failed to interview prior to the Director’s preparation of his statement were Cheryl Mills and Heather Samuelson, both of whom were close Clinton aides with extensive knowledge of the facts surrounding the establishment of a private email server.  Last year, this Committee inquired repeatedly of the Justice Department about the facts surrounding Ms. Mills’ and Ms. Samuelson’s involvement.  Our inquiries were largely ignored.  Recently, we wrote to you to request responses to those and other unanswered questions pertaining to the Clinton investigation.  We have not received a response.  However, as the most recent Comey revelations make clear, ignoring this problem will not make it go away.

As we pointed out at the time, both Ms. Mills and Ms. Samuelson received immunity for their cooperation in the Clinton investigation, but were nevertheless permitted to sit in on the interview of Secretary Clinton.  That, coupled with the revelation that the Director had already drafted an exoneration statement, strongly suggests that the interview was a mere formality, and that the Director had already decided the case would be closed.

Why, indeed.  Perhaps it was because, just as the Comey revelation suggests, the decision had already been made – prior to the interview of Secretary Clinton, Ms. Mills, Ms. Samuelson, or any of the other 14 potential witnesses – that Secretary Clinton would not be charged with any crimes for her conduct.  President Obama had indicated as much, by stating publicly at the time that although Secretary Clinton showed “carelessness” in conducting government business on a private server, she had no intent to endanger national security.  Of course, Secretary Clinton’s supposed lack of “intent to harm national security” is a red herring, since the law merely requires the government to show “gross negligence.”

Moreover, we note that not only did the former Director end the investigation prematurely — and potentially at the direction, tacit or otherwise, of President Obama — but he did so while declining to record the interviews of former Secretary Clinton or any of her close associates, as provided for by DOJ policy.  The policy states:

This policy establishes a presumption that the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), and the United States Marshals Service (USMS) will electronically record statements made by individuals in their custody. This policy also encourages agents and prosecutors to consider  electronic recording in investigative or other circumstances where the presumption does not apply.  The policy encourages agents and prosecutors to consult with each other in such circumstances.

Despite this, the DOJ and FBI declined to exercise their discretion to record the interview of former Secretary Clinton.  This is truly inexplicable, given that the case was of keen national interest and importance, and involved a former Secretary of State and candidate for President of the United States who was accused of violating the Espionage Act.  It only reinforces the sense that our nation’s top law enforcement officials conspired to sweep the Clinton “matter” under the rug, and that there is, truly, one system for the powerful and politically well-connected, and another for everyone else.

In this case, it appears that Director Comey and other senior Justice Department and government officials may have pre-judged the “matter” before all the facts were known, thereby ensuring former Secretary Clinton would not be charged for her criminal activity.  We implore you to name a second special counsel, to investigate this and other matters related to the 2016 election, including the conduct of the Justice Department regarding the investigation into Secretary Clinton’s private email server.