A federal judge is threatening to appoint a "private prosecutor" to press a criminal investigation about FBI leaks to the press in an insider trading case.
The Justice Department opened a criminal investigation in December 2016 into the leaks. But progress has been slow, or opaque, enough that Judge P. Kevin Castel of the United States District Court of the Southern District of New York issued a two-page order on April 2, 2018, raising the prospect of hiring his own lawyer.
FBI leaks to the press raised bipartisan concern during and after the presidential campaign. Democrats were upset about the handling of investigations into Hillary Clinton's emails and the Clinton Foundation, while Republicans were upset about the handling of the investigation into Russian interference in the election. The issue is back in the news this week with the publication of former FBI director James Comey's book and the FBI inspector general's referral to prosecutors of his findings about a leak case involving former FBI deputy director Andrew McCabe.
Judge Castel's concern about leaks by David Chaves when Mr. Chaves was a supervisory special agent in the FBI's New York Field Office has attracted some attention in the context of the political furor over the FBI. The case is mentioned in Jerome Corsi's 2018 book Killing The Deep State. And veteran conservative investigative journalist John Fund mentioned it in a Fox News column in December 2017. But the April 2 court order, while publicly available in the Public Access To Court Electronic Records system, has flown under the radar until now.
"Ordinarily, the decision to enforce a law of the United States imposing a criminal penalty is entrusted exclusively to the executive branch of government. Not so in the case of criminal contempt," Judge Castel wrote in the order. "The Court has the inherent power to appoint a private attorney to prosecute the contempt. This is because contempt of court, including a violation of grand jury secrecy, undermines the integrity of the judicial process."
The judge wrote that he has "so far" elected not to hire a private lawyer to pursue the case, but reminded the prosecutors, "where, as here, the conduct of persons within the executive branch of government is at issue it may be a prudent exercise of the Court's inherent power to appoint a private prosecutor."
The judge said he'd set aside 4 p.m. on June 27 for the federal prosecutors to tell him more about their investigation. The judge left open the possibility that if the federal prosecutors didn't either speed up their activity or provide more information, he'd replace them with someone from outside the government.
"It has now been over a year since the Court imposed a reporting requirement on the government in its investigation of leaks of grand jury material to the press by a supervisory Special Agent of the Federal Bureau of Investigation. The existence of unauthorized leaks by the FBI has been admitted by the government, and it has further conceded that it cannot defend against the assertion that the leaks included grand jury information," the order says. "The extent of the leaks and the identity of other participants is not yet known to this Court."
The supervisory special agent, Mr. Chaves, has since left the bureau. His lawyer, Sean Casey, did not immediately return a phone message seeking comment.
Judge Castel, who was nominated by George W. Bush, had ordered prosecutors to provide updates on the leak investigation every three months. In June 2017, he faulted the prosecutors for providing a report that he said "provides no meaningful information."
Federal prosecutors in Manhattan recused themselves from the case, turning it over to lawyers from the Office of Public Integrity at the Department of Justice in Washington. Earlier court filings in the case, which involved stock trading by a Las Vegas sports gambler named William Walters and that also tangentially involved pro golfer Phil Mickelson and the investor and Trump ally Carl Icahn, indicated that the recipients of the leaks included journalists at the Wall Street Journal and the New York Times. Neither Mr. Mickelson nor Mr. Icahn were charged with any crime. Walters was convicted, fined, and sentenced to prison after Judge Castel ruled the grand jury leak were not sufficient legal grounds to dismiss the case against him.
Pictured: The Thurgood Marshall United States Courthouse, home of the United States District Court for the Southern District of New York. (Image source: Wikimedia Commons)