Senators Press Justice Department on Whitaker, Benczkowski Conflicts of Interest

Washington, DC – Senators Sheldon Whitehouse (D-RI), Dianne Feinstein (D-CA), Patrick Leahy (D-VT), Dick Durbin (D-IL), Ron Wyden (D-OR), Amy Klobuchar (D-MN), Chris Coons (D-DE), Richard Blumenthal (D-CT), Mazie Hirono (D-HI), Cory Booker (D-NJ), and Kamala Harris (D-CA) asked the Department of Justice today to detail its handling of the serious financial, professional, and political conflicts of interest of Acting Attorney General Matthew Whitaker and Assistant Attorney General for the Criminal Division, Brian Benczkowski.  The two officials’ activities before arriving at the Justice Department present ethical concerns that agency ethics officials have not yet fully resolved and memorialized.  Despite repeated requests for ethics records by members of Congress, and growing concern with the influence Whitaker and Benczkowski have over highly sensitive Justice Department work like Special Counsel Robert Mueller’s investigation, the Department has not been forthcoming. 

“To maintain the public’s trust in an impartial DOJ, we urge you to provide prompt, complete, and public responses to the issues we raise,” the senators write to the Justice Department’s Assistant Attorney General for Administration and Designated Agency Ethics Official and Professional Responsibility Advisory Office. “The impartiality and credibility of DOJ’s leadership are of national importance.”

According to financial disclosures, Whitaker has accepted over $1.2 million in compensation as executive director of the Foundation for Accountability and Civic Trust (FACT), an organization that filed at least 14 complaints in recent years against Democratic politicians, and has spent thousands of dollars on contracts with conservative political attack groups.  FACT has received at least $2.45 million from the secretive DonorsTrust, which has been described as “the dark-money ATM for the right.” 

Whitaker also allegedly accepted campaign donations this year – while serving as a senior Justice Department official – to a campaign committee he used for a 2014 run for U.S. Senate.  In response to complaints by Senator Whitehouse and others, the United States Office of Special Counsel has opened an independent investigation into whether this conduct violated the Hatch Act. 

Benczkowski, while serving in private legal practice, represented Alfa Bank, a Russian bank implicated in possible coordination between the Trump campaign and the Russian government during the 2016 presidential campaign.  As head of the Criminal Division, Benczkowski is in position to learn details about numerous highly sensitive Justice Department investigations and prosecutions – access that is particularly troubling given his political connections in the Trump administration.  The Justice Department has written to senators that Benczkowski is recused from matters involving previous clients, but has not provided details of his recusals.

In July, Whitehouse and Dick Durbin (D-IL) led 14 Democratic members of the Senate in asking the Justice Department to detail Benczkowski’s ethical agreements.  Among the senators’ concerns was the potential for Benczkowski to access information on Special Counsel Robert Mueller’s investigation.  They also raised Benczkowski’s commitment to recuse himself from matters related to Alfa Bank—a recusal that does not encompass the bank’s parent company, Alfa Group Consortium. 

Full text of the senators’ letter is below.  A PDF copy is available here.

December 4, 2018

Mr. Lee Lofthus
Assistant Attorney General for Administration and Designated Agency Ethics Official
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

Ms. Stacy Ludwig
Director
Professional Responsibility Advisory Office
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

Dear Mr. Lofthus and Ms. Ludwig:

We write to request an update on, and additional information about, how the Department of Justice (DOJ) is assessing potential conflicts of interest—financial, professional, and political— of Acting Attorney General Matthew Whitaker and Assistant Attorney General Brian Benczkowski.  For background, some of these are renewed requests because DOJ has either failed to respond or has provided incomplete responses to prior requests from Congress.  We appreciate the efforts your offices are making to ensure these individuals have been properly vetted.  To maintain the public’s trust in an impartial DOJ, we urge you to provide prompt, complete, and public responses to the issues we raise below.

Matthew Whitaker

Matthew Whitaker was appointed Acting Attorney General on November 7, 2018.  Mr. Whitaker had previously been appointed to the position of Chief of Staff and Senior Counselor on October 4, 2017.  On November 11, 2018, Democratic leaders from the House and Senate wrote to Mr. Lofthus asking, among other things, whether any “ethics officials at the Justice Department … have advised Mr. Whitaker to recuse from supervision of the Special Counsel investigation, … the basis for that recommendation, [and] all ethics guidance the Department has provided to Mr. Whitaker to date.” 

Compliance with the Ethics in Government Act would have required Mr. Whitaker to file financial disclosures with the Department’s designated agency ethics officials on two separate occasions: when he joined the Department in 2017 and again by May 15, 2018.  The Department is legally required to have these disclosures certified and made available to public requestors within 30 days of their filing.[1]  When the Department finally released Mr. Whitaker’s financial disclosures on November 20, 2018, it was revealed that DOJ did not certify these disclosures until after Mr. Whitaker had had the opportunity to revise them on five separate occasions (November 7, 8, 16, 19 and 20 of 2018)—nearly six months after the deadline for submission, and only after he had been named as Acting Attorney General.[2]

These delays only became apparent after Mr. Whitaker was appointed Acting Attorney General outside the line of succession established under 28 U.S.C. § 508.  Had that law been followed, Deputy Attorney General Rod Rosenstein, who has been confirmed by the Senate and whose financial disclosures and confidential background information have already been fully vetted by it, would now be serving at the nation’s chief law enforcement officer.  Instead, that role, which is among the most sensitive and consequential in the federal government, is being filled by someone about whom the Senate, DOJ, and the general public know very little.  To date, the Department has not produced prior versions of Mr. Whitaker’s financial disclosures, any ethics agreements he entered into with the Department, or any other ethics-related counseling he has received—all of which have been requested and should be made available.

Information we have learned about Mr. Whitaker from DOJ and through media reports demonstrates why your offices must complete a prompt and thorough assessment of Mr. Whitaker’s financial, professional, and political conflicts of interest, and make public that assessment, as well as any related recusals, waivers, and authorizations.  Former Attorney General Alberto Gonzales has argued this is appropriate for Mr. Whitaker’s potential involvement overseeing Special Counsel Robert Mueller’s investigation, making the sensible observation that Mr. Whitaker’s is “not a normal appointment” and that “public assurances … might ease concerns about the president’s motives in choosing Whitaker for this important position at this particular moment.”[3]  Attorney General Gonzales’s point is well taken with respect to any issue in Mr. Whitaker’s background that may raise concerns under the Ethics in Government Act (5. U.S.C. app. 4 and 5 C.F.R. §§ 2635.501-503), the Hatch Act (5 U.S.C. § 1501 et seq.), DOJ rules requiring disqualification because of a prior personal or political relationship (28 C.F.R. § 45.2), and applicable bar rules and standards of professional conduct (including Model Rules of Professional Conduct R. 1.11).  For example:

• Since 2015, Mr. Whitaker has received more than $1.2 million in compensation from the Foundation for Accountability and Civic Trust (FACT), a 501(c)(3) organization promoting “accountability” from public officials.[4]  Between 2014 and 2016, FACT received virtually all of its funding—approximately $2.45 million—from a donor-advised fund called DonorsTrust.[5]  DonorsTrust has been described as “the dark-money ATM for the right,” which “allows wealthy contributors who want to donate millions to the most important causes on the right to do so anonymously, essentially scrubbing the identity of those underwriting conservative and libertarian organizations.”[6]  Given Mr. Whitaker’s activities at FACT, discussed below, a necessary part of any conflict of interest review by your offices will be to determine the real parties that funded Mr. Whitaker’s activities.  The tax laws that limit transparency about dark money in IRS filings should not be treated as impediments to obtaining necessary ethics disclosures now that Mr. Whitaker is a public official.  The information is not privileged.
• Mr. Whitaker served as FACT’s executive director until joining the Justice Department in 2017.  During and after his tenure at FACT, the organization has filed at least fourteen complaints and requests for investigations with the Department of Justice, the Internal Revenue Service (IRS), and the Federal Election Commission (FEC) against Secretary of State Hillary Clinton, various Democratic members of Congress, Democratic Party leaders, and Democratic candidates.  (See Appendix A for the complete list.)  Many of these actions could be or are related to specific matters before DOJ or FBI, and as such raise serious conflict of interest and professional responsibility concerns. 
• From 2015 to 2017, FACT paid America Rising LLC at least $500,000 for research.[7]  America Rising describes itself as “an opposition research and communications firm whose mission is to help its clients defeat Democrats.”[8]  FACT also paid $500,000 to Creative Response Concepts, a conservative public relations consulting firm.  Creative Response Concepts is perhaps best known for orchestrating the “swift boat” ads against Democratic presidential nominee John Kerry in 2004.[9]  Mr. Whitaker’s relationship with these political attack organizations is damaging enough to DOJ’s reputation.  It also casts serious doubt in the mind of any reasonable person as to his fitness to be impartial overseeing any Criminal Division or Civil Rights Division investigations or prosecutions into voter fraud or suppression.[10] 
• FACT’s record of attacking Democratic politicians, its close ties with American Rising, and its funding relationship with DonorsTrust all suggest FACT may have been involved in partisan political activities that violate tax code rules on 501(c)(3) organizations.[11]  This casts doubt on Mr. Whitaker’s fitness to impartially oversee certain activities of DOJ’s Tax Division. 
• During Mr. Whitaker’s tenure at FACT, Neil Corkery served on its board of directors.  Until 2014, Mr. Corkery also served as the treasurer of the Judicial Crisis Network, a 501(c)(4) organization, and the Judicial Education Project, a 501(c)(3), which together have spent millions of dollars to prevent Chief Judge Merrick Garland from receiving a hearing on his nomination to the Supreme Court and on political campaigns in support of the nominations of Neil Gorsuch and Brett Kavanaugh.[12]  Mr. Whitaker’s relationship with Mr. Corkery is plainly relevant to determining whether Mr. Whitaker has a conflict of interest, or can be viewed as impartial in overseeing any of DOJ’s work vetting and preparing President Trump’s nominees to the federal bench. 

Pursuant to Ethics in Government Act regulations (5 C.F.R. §§ 2635.501-503), an employee should seek advice from an ethics official before participating in any matter in which the employee’s impartiality could be questioned, and if a conflict exists, a determination must be made as to whether the interest of the government in the employee’s participation outweighs the concern a reasonable person may question the Department’s integrity.  This determination must be made in writing.  We hope that Mr. Whitaker raised the above facts with ethics officials at DOJ and that DOJ has made determinations regarding conflicts of interest and impartiality when Mr. Whitaker was appointed to his former position.  If it did not, there should be no greater priority in your offices than to conduct a thorough assessment that at a minimum addresses the facts above. 

Brian Benczkowski

On July 24, 2018, fourteen Senators requested information “concerning Mr. Benczkowski’s ethics agreement with the Department, the scope of his recusals, any waivers he has been granted, and any other information relevant to the Department’s review of Mr. Benczkowski’s prior work as it relates to his compliance with the Ethics in Government Act, associated regulations, Department policy, and the Trump Ethics Pledge, Executive Order 13770.”[13]  On October 18, 2018, Assistant Attorney General Stephen Boyd provided a cover letter and three documents: a February 26, 2018, review of Mr. Benczkowski’s financial disclosure report (which had already been made available to the Senate Judiciary Committee), a Certification of Ethics Agreement Compliance (which is available publicly through the Office of Government Ethics (OGE) website), and a signed copy of the Trump Ethics Pledge (also available through OGE). 

In response to that letter, staff from Senator Whitehouse’s office requested two additional pieces of information:  

• A post-confirmation recusal statement documenting Mr. Benczkowski’s specific recusal obligations pursuant to 5 C.F.R. § 2634.804.  Such statements typically list and describe “the specific matters or subjects to which the recusal applies, a statement of the method by which the agency will enforce the recusal, and a list of the positions of those agency employees involved in the enforcement.” 5 C.F.R. § 2634.804(b)(1).  These statements are regularly disclosed by other federal agencies upon request.   
• Further information about the notation in section 7(c) of the Certification of Ethics Agreement Compliance, which indicates Mr. Benczkowski received a 502(d) authorization for a “former client” on August 21, 2018.  Section 502(d) authorizations are regularly made public by the White House,[14] though none have been made public since July 16, 2018. 

After repeated requests at a staff level, today DOJ provided heavily redacted information about Mr. Benczkowski’s 502(d) authorization, and no further information about his recusals.

As was noted in the Senators’ July 24 correspondence with DOJ, the information we have requested does not address speculative or hypothetical concerns.  In private practice, Mr. Benczkowski represented Alfa Bank, a member of the Alfa Group Consortium.  Three individuals with ownership interests in Alfa Group Consortium—Mikhail Fridman, Pyotr Aven, and German Khan—have been identified to Congress by the United States Department of Treasury as among “senior foreign officials and oligarchs in the Russian Federation, as determined by their closeness to the Russian regime and their net worth.”[15]  A son-in-law of Mr. Khan, Alex Van der Zwaan, pleaded guilty to lying to federal investigators.[16]  Mr. Benczkowski’s recusal from the Special Counsel investigation does not address his involvement in any of these matters. 

The impartiality and credibility of DOJ’s leadership are of national importance.  By conducting thorough and transparent reviews of Mr. Whitaker and Mr. Benczkowski, your offices play a critical role in ensuring compliance with the high standards DOJ officials historically have sought to maintain.  To that end, we request the following:

• Prompt disclosure of all prior versions of Mr. Whitaker’s financial disclosures, any ethics agreements he entered into with the Department, and any other ethics-related counseling he has received, including waivers and authorizations.
• Prompt disclosure of all written ethics instruments governing Mr. Whitaker during his tenure as Chief of Staff and Senior Counselor to the Attorney General.
• Prompt disclosure of the additional information about Mr. Benczkowski’s conflicts of interest described above.
• Assurances that the issues raised in this letter about Mr. Whitaker’s background will be fully examined by career ethics officials.
• A commitment that all determinations about Mr. Whitaker’s conflicts of interest, including any waivers or authorizations he receives, will be made public.

We respectfully request a response to this letter not later than December 11, 2018. 

cc: The Honorable Charles E. Grassley
The Honorable Jerrold Nadler
Assistant Attorney General Stephen E. Boyd

Appendix A

• In February 2015, Mr. Whitaker, on behalf of FACT, filed a complaint with the FEC alleging a Democratic data firm made illegal contributions to the Democratic Party and various democratic committees.^[17]
• In March 2015, Mr. Whitaker, on behalf of FACT, wrote a letter to Attorney General Holder requesting the Attorney General’s office “initiate an action to recover all of Secretary Clinton’s email correspondence from her private account during the time she served as Secretary of State.”^[18]
• In April 2015, Mr. Whitaker, on behalf of FACT, wrote to Attorney General Holder requesting that he initiate an investigation into Sidney Blumenthal for failing to register under the Foreign Agents Registration Act.^[19]
• In April 2015, Mr. Whitaker, on behalf of FACT, filed a complaint with the FEC against Secretary of State Clinton, alleging that she was conducting campaign activities before officially announcing her candidacy.^[20]  FACT filed a supplemental complaint in June 2015.^[21]
• In May 2015, Mr. Whitaker, on behalf of FACT, filed complaints with the FEC against the NextGen Climate Action Committee and the Correct the Record PAC, alleging illegal contributions and improper coordination.^[22]
• In October 2015, FACT filed a complaint with the Internal Revenue Service against the Clinton Foundation for payments it made to the 2008 Clinton campaign.^[23]
• In December 2015 and January 2016, Mr. Whitaker, on behalf of FACT, filed a complaint with the Office of Government Ethics alleging that Secretary of State Hillary Clinton gave a private company improper access to the State Department based on her personal relationship with the company.^[24]
• In January 2016, Mr. Whitaker called for a special counsel to investigate Secretary of State Hillary Clinton’s emails.^[25] 
• In October 2016, Mr. Whitaker, on behalf of FACT, filed an FEC complaint against the Democratic Congressional Campaign Committee alleging illegal contributions to the Clinton Campaign and to other Democratic congressional candidates.^[26]
• In April 2017, Mr. Whitaker, on behalf of FACT, wrote a letter to Democratic Congressman Joaquin Castro, calling on him to recuse himself from the U.S. House Permanent Select Committee on Intelligence Russian Active Measures investigation for comments made during a television interview.^[27]
• In August 2017, Mr. Whitaker, on behalf of FACT, filed a complaint with the FEC alleging the Democratic National Committee solicited and accepted illegal contributions from the government of the Ukraine.^[28]
• In April 2018, FACT filed a complaint with the Office of Government Ethics and the Office of the Inspector General of the Consumer Financial Protection Bureau (CFPB) against then-CFPB Deputy Director Leandra English, alleging Ms. English misused government funds to bring a lawsuit against President Trump and purported CFPB acting Director Mick Mulvaney.^[29]
• In September 2018, FACT asked DOJ to investigate three outside political groups for allegedly illegally running a crowdfunding website meant to bribe Senator Susan Collins (R-Maine) over her upcoming vote on the confirmation of United States Supreme Court nominee Brett Kavanaugh.^[30]
• During and after Mr. Whitaker’s tenure at FACT, FACT is on record stating it has filed numerous complaints with the FEC and congressional ethics committees regarding various Democratic Senators, members of Congress, federal candidates, and Democratic Party officials alleging campaign finance violations. ^[31]

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