The aftermath of the 2016 election is prompting something of a long overdue housecleaning at the FBI.
Director James Comey was fired. Deputy director Andrew McCabe retired. FBI agent Pete Strzok and FBI lawyer Lisa Page were reassigned after their text messages were exposed. The House Intelligence Committee has released, over the bureau's objections, the Nunes memo faulting the bureau for "abuses" in its application to wiretap a Trump campaign aide.
So long as Congress and the Trump White House are taking a look at FBI shenanigans, let them not forget the case of Supervisory Special Agent David Chaves.
He is the one whose interactions with reporters for the Wall Street Journal and the New York Times were described by federal prosecutors in a January 2017 court filing as "unquestionable misconduct by an agent of the Government...improper and inexcusable." The federal judge presiding over the insider trading case affected by the illegal leaks of grand jury information, P. Kevin Castel, was so worked up about the issue that he ordered the Justice Department to provide updates every three months on the status of the leak investigation.
The latest of those updates appears here, with enough redaction to make it resemble a late Rothko painting.
Chaves, like McCabe, has now apparently retired, according to his page at the speaker's bureau that represents him.
The insider trading leaks and the conduct surrounding the Clinton email investigation and Trump Russia influence investigation may appear different, but there are actually plenty of similarities. In all three cases, law enforcement skated close to the warning of Robert Jackson in his classic 1940 speech "The Federal Prosecutor": "It is in this realm — in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies."
In all three cases, there were real life consequences. Hillary Clinton and her supporters blame Comey's public statements, with some justification, for affecting the outcome of the election. The Russia investigation has mired Trump's aides in a morass of legal fees and perjury-trap interviews, regardless of their underlying culpability. And the insider trading investigations took years out of the lives of money managers like Michael Steinberg and David Ganek, who were never ultimately found to be guilty of any crimes or, in Ganek's case, even charged.
In both the insider trading cases and the Russia investigation, wiretaps were used and perhaps abused. A federal judge in Connecticut found that FBI agents listened to 180 phone calls between hedge fund manager Craig Drimal and his wife Arlene. The judge described the agents' conduct as "disgraceful," "egregious," and "voyeuristic."
In both the insider trading investigation and the presidential campaign-related cases, details of the investigations repeatedly leaked in advance to the press, possibly in violation of Rule 6(e) of the federal rules of criminal procedure. The U.S. Attorneys' Manual makes clear those leaks can be subject to criminal prosecution as federal felonies: contempt of court, obstruction of justice, or theft of government property.
Don't expect to read much about this in the mainstream press. The New York Times and Wall Street Journal reporters were the ones meeting with FBI agents like Chaves. As for the Washington Post, the Jeff-Bezos-owned newspaper maintains a website soliciting confidential documents and helpfully advising would-be leakers to "Delete trails of communication that you store on your computer, such as copies of messages."
New York prosecutors recused themselves in the Chaves case and passed the matter off to Main Justice in Washington, but regardless of where the prosecutors sit, it's still a case of the Justice Department investigating itself. An important question is whether Chaves was acting alone or if he had cooperation or authorization of colleagues or superiors. If the Justice Department can't get answers, maybe Congress or the White House can. Under our Constitution, after all, no government agency — not even the FBI — is exempt from oversight or accountability.
