July 10, 2018

Whitehouse to Urge Colleagues to Vote ‘No’ on Former Alfa Bank Lawyer Benczkowski to Lead DOJ Criminal Division

Washington, DC – This evening, Senator Sheldon Whitehouse (D-RI), a member of the Senate Judiciary Committee and a former federal prosecutor, will take to the Senate floor to speak out against the confirmation of Brian Benczkowski to lead the Criminal Division of the U.S. Department of Justice.  Citing Benczkowski’s troubling connections to Alfa Bank, a Russian bank tied to Vladimir Putin and the Trump Organization, and a glaring lack of experience in criminal law, Whitehouse will call for his colleagues to vote no on Benczkowski’s nomination.

This goes beyond an unqualified nominee,” Whitehouse says in his as-prepared remarks.  “This is a nominee exhibiting a flashing array of warnings that there may be mischief afoot here.  No Senator should take this vote unaware of these obvious warnings.  In the name of the integrity and independence of the Department of Justice, Senators should vote no because of the contamination risk Mr. Benczkowski poses, even if he were highly qualified for the post.”

Whitehouse is slated to deliver his speech at ~6:10 p.m. today (following votes).  His full as-prepared remarks are below. 

This past year and a half of the Trump Administration has been a constant, daily barrage of scandal, corruption and chaotic incompetence.  In this environment, the Senate now considers the President’s controversial nomination of Brian Benczkowski to lead the Criminal Division of the United States Department of Justice.  It’s been over a year since he was first nominated, and there have been repeated calls for his nomination to be withdrawn. 

Why this man, for this job, at this time?  

There is a very good chance that something fishy is happening here. The warning signals of something fishy should be evident to Democratic and Republican Senators alike.  

The obvious question is whether President Trump and his political or legal team are using this appointment to sneak a fast one by the American people, and put themselves in a position to interfere, from the inside, with the Department of Justice investigation into the dealings between Russia and the Trump campaign — the so-called Mueller investigation, though it has expanded beyond Bob Mueller into other parts of the Department of Justice. 

How would this work, exactly? 

We are voting today to install a Trump ally and nominee – a longtime political operative with ties to a Russian bank and to the recused Attorney General Jeff Sessions – into one of the most powerful posts at the Department of Justice – a position that just so happens to have supervisory control over Special Counsel Mueller’s investigation and the Southern District of New York criminal investigation into Trump’s personal lawyer, Michael Cohen. 

What could possibly go wrong?

Remember, we’re dealing with a president who remains the subject of an ongoing criminal investigation by the Department of Justice.  We are dealing with a President who repeatedly violates longstanding rules and norms in his continuing efforts to interfere with that investigation.  We are dealing with a President who has told the press he believes he has “absolute control” over the DOJ; and who repeatedly criticizes Attorney General Sessions’s recusal from the Russian interference investigation as insufficiently “loyal.”  We are dealing with a President who appears to have actively interfered in the Department’s investigation into Michael Flynn; who insisted on “loyalty’ from his FBI Director; and who admitted that firing that FBI Director was to ease pressure on him over “the Russia thing.” 

We know all of this in the Senate, often from this President’s own mouth and tweets.  With that backdrop from the Oval Office for this nomination, extra caution is warranted, to be sure we are not being led into trouble.

Worse still, it’s not just the President who’s up to no good.  Republicans in the House – I suspect hand in hand with the Trump White House and legal team – are pressing their smear campaign against Deputy Attorney General Rosenstein, seeming to want to kneecap the independence of the Mueller investigation, and get access to its confidential investigative files.  As a former United States Attorney, I recoil from the notion that a legislative body wants to peek over the shoulders of prosecutors in an ongoing investigation, particularly when these legislators are so closely allied with the subject of that investigation. 

Against that backdrop of House interference, the Senate is being asked to install a Trump loyalist into a key position of authority and control over the Russia/Trump collusion investigation.  Even more caution is warranted for this nomination, given the behavior of the House.

So, why this man, for this job, at this time?  Why Benczkowski?  Let’s review.

He is nominated to be the Chief of the Criminal Division, a critically important office within DOJ.  He will oversee nearly 700 career prosecutors who are some of most talented and experienced in the country.  Criminal Division lawyers prosecute nationally significant cases, from high-profile public corruption, to child exploitation, to complicated money laundering and organized crime cases.

One thing that’s obvious is that Mr. Benczkowski brings astoundingly weak qualifications to that task.  Given the stakes and complexity of the Criminal Division’s work, you’d expect someone leading the Division who had years of experience as a prosecutor, who had tried cases to verdict — someone who knew the ins and outs of the Division’s work and knew his way around federal courtrooms.

To say Benczkwoski lacks this experience is putting it mildly. He may be the weakest candidate ever put forward to oversee the Criminal Division.  He is probably not hirable into the career positions he will oversee.  The man has less courtroom time than the average citizen who has sat on a jury.  He has never tried a case, of any sort, criminal or civil, federal or state. He has never argued a motion – something most litigators have done in their first years out of law school.  He has never worked as a prosecutor.  His stints at the Department of Justice were never as a practicing lawyer, but always on the political side.  In his whole career, he told the Senate, he could only come up with “one or two” times he ever entered a courtroom, on “routine scheduling or other matters.”

So it’s not Mr. Benczkowski’s qualifications or experience that are the reasons for this appointment. That raises the question:  why put this prosecutorial neophyte into one of the most powerful and important prosecutorial positions at the DOJ?  What, one might ask, is the motive?

What do we know?   Although serious questions remain unanswered by the DOJ, we know from our correspondence with the Department that the Russia/Trump collusion investigation is being run under DOJ procedures that require approval by the Criminal Division for a wide array of investigative and prosecutive steps.  That gives Benczkowski, if he is confirmed, not just a window into the Russia/Trump collusion investigation, but the ability to interfere.  

What else we know about Mr. Benczkowski is that he was a longtime political operative, here in the Senate, on the Senate Judiciary Committee, where he worked as staff director for none other than Senator Jeff Sessions. 

Attorney General Jeff Sessions has recused himself from the Russia/Trump collusion investigation.  It is an obvious question, if this person brings no experience as a prosecutor, but plenty of experience as a close political operative for Jeff Sessions, whether that close relationship is the reason.

That in turn presents the obvious question, since Benczkowski’s not there for his experience or qualifications, whether he’s being installed as a back channel:  either as a trusted intermediary to get information to Attorney General Sessions around his recusal perhaps; or perhaps — in a worst case scenario — to be a pipeline to Trump and his lawyers of confidential investigative information.  Or maybe it’s simply to jam the bureaucratic gears whenever Robert Mueller seeks approvals from the Criminal Division.

There is an easy answer to these obvious questions. It is:  “don’t worry, Mr. Benczkowski will be fully recused from that investigation.”  But the Department, and Mr. Benczkowski, won’t say that.  There has been no meaningful answer.  Why won’t they just say that?  “He’ll be recused.”

That should be easy.

But wait, it gets weirder.  Benczkowski has his own Russia/Trump angle.

After the election, with his old boss Sessions tapped to become Attorney General, Benczkowski volunteered for the Trump transition team, leading the so-called “landing team” at DOJ.  It was on his way out the door from that role, heading back to his law firm, that Benczkowski told Sessions he was interested in securing a political appointment in the Department of Justice.

Just two months later, in March 2017, Benckowski took a call from one of his law partners:  the firm was representing the Russian Alfa Bank against allegations it was serving as a back channel to the Trump Organization.  Alfa Bank is one of Russia’s largest banks, and its owners reportedly have “longstanding ties” to Vladimir Putin.  The partner wanted to know, could Benczkowksi — fresh off the Trump Transition Team — help?

Benczkowski joined the Alfa Bank legal team.

The next month, in April 2017, Benczkowski was contacted by the Attorney General’s office, to ask whether he would like to head up the Department’s Criminal Division.  Press reports as early as May 4 indicated that Benczkowski was likely to be tapped for the Criminal Division job.

Surely a person of sound judgment, at this point, would have stopped representing a Russian bank that might be under DOJ investigation for secret ties to the president.

But, rather than withdraw from his representation, Benczkowski expanded his portfolio to review the now-famous (and widely verified) Steele Dossier.  The Steele Dossier has been a feature not only in the Russia/Trump collusion investigation, but also of Republican political efforts to discredit the collusion investigation.   Benczkowski’s new portfolio was to advise whether Alfa Bank should file a defamation suit against publisher BuzzFeed for disclosing the dossier, which Alfa Bank subsequently did, in New York state court.

Wait, there’s more.  Benczkowski’s nomination triggered confirmation obligations to disclose information to the Senate Judiciary Committee about his background, publications and clients.  This client was a Putin-tied Russian bank, and his work related to the red-hot Steele Dossier, so obviously he disclosed this client relationship.  

Actually, not. 

Benczkowski’s Senate Judiciary Questionnaire included no mention whatsoever of the Russian bank.  Only when Democratic Senators reviewed Benczkowski’s confidential FBI background file did questions arise about his relationship with Alfa, and his review, for a Russian client, of the Steele Dossier.  Benczkowski explained the troubling omission, telling us he had been forbidden by his firm’s confidentiality agreement from disclosing his work for Alfa Bank. 

Some people would have thought his obligations of disclosure to the Senate mattered more than obligations of non-disclosure to such a client.  These disclosure issues are customarily waived by clients in these circumstances.  Or the nominee can withdraw.  You don’t just fail to list such a client.  He did.   

Mr. Benczkowski was voted out of the Judiciary Committee on a party-line vote a year ago.  Now, with the Russia/Trump Investigation heating up; with significant new cooperating witnesses and millions of pages of new documents available to DOJ from Michael Cohen— now, Republicans let this nomination come forward. 

Particularly today, when the country has turned its focus to the Supreme Court announcement, an announcement obviously likely to dominate the news cycle, this bizarre nomination gets called up for a vote.

This a nomination that should fail on qualifications alone.  In the name of the 700 career prosecutors in the Criminal Division who deserve an experienced and capable leader at their helm; in the name of the victims our criminal laws are intended to protect; – I urge my colleagues to vote “no.”

But this goes beyond an unqualified nominee.  This is a nominee exhibiting a flashing array of warnings that there may be mischief afoot here.  No Senator should take this vote unaware of these obvious warnings.  In the name of the integrity and independence of the Department of Justice, Senators should vote no because of the contamination risk Mr. Benczkowski poses, even if he were highly qualified for the post. 

This combination of lack of qualifications and risk of contamination is a combination no Senator ought to accept; not for this man, not for this job, not at this time.  Be warned, colleagues.  Be warned.  


Press Contact

Meaghan McCabe, (202) 224-2921