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The Senate Must Vote Not to Confirm Brian Benczkowski, A Potential Threat to the Mueller Investigation

If the investigation surrounding “Trump-Russia” has at times seemed like a twisty spy novel, we could be about to enter a disturbing new chapter. The vote on whether or not to confirm Brian Benczkowski’s nomination to head the Department of Justice’s Criminal Division is imminent, and could have profound implications on the investigation.

In the words of our friends at The Loyal Opposition, Benczkowski is “the most dangerous Trump nomination you’ve never heard of.” We’ve written several times in the past about the dangers facing Special Counsel Robert Mueller’s probe into possible collusion between the Trump Campaign and Russian officials during the 2016 election. In the past, the feared threats of major interference into the investigation by President Trump and his loyalists in Congress have ranged from directly firing Mueller, to removing Deputy Attorney General Rod Rosenstein, to the pardoning of key witnesses. But the nomination of Benczkowski could represent a new danger– and it is moving now.

For one, Benczkowski’s lack of qualifications to head the division is concerning. While the Assistant Attorney for the Criminal Division (the position he is nominated for) must oversee and manage wide-ranging criminal prosecution efforts, Benczkowski has never served as a prosecutor nor tried a single case. Instead, his experience lies in his past as a former top aide to then-Senator, and now Attorney General, Jeff Sessions. Benczkowski’s lack of courtroom experience leaves him woefully unprepared to lead a large team of career prosecutors.

But a closer examination of Benczkowski’s past paints an even more troubling picture. For one, Benczkowski has told Congress that he once represented Alfa Bank, a massive financial institution in Russia controlled by Putin-linked oligarchs. Alfa Bank was previously under investigation by the FBI for suspicious communications between servers linked to the Trump Organization and the bank. As a letter to President Trump co-signed by all ten Democrats on the Senate Judicary Committee notes, the Senate (and the public) do not know if the bank is still under federal criminal investigation, nor the full story behind those communications.

Furthermore, Benczkowski’s longstanding ties to Attorney General Sessions raise the concern that, if confirmed, his tenure as Assistant Attorney General could jeopardize the Justice Department’s independence from the Executive or the terms of Sessions’ recusal from the Mueller probe. For instance, by overseeing cases referred by the Special Counsel’s office, such as the Southern District of New York’s criminal investigation of Michael Cohen, Benczkowski would be in a position to suppress or limit these investigations. And while Sessions has not recused himself from the Michael Cohen case, he has recused himself from all matters related to the 2016 election.

The public has no way of knowing what Benczkowski would be able to learn about the probe; despite Senator Sheldon Whitehouse (D-RI)’s repeated requests for Rosenstein to explain who at the Justice Department has access to information about the investigation, no clear information has been disclosed. Should Benczkowski be in a position to learn any details of the Special Counsel’s probe, his past as a Sessions loyalist raises concerns that he could pass along that information to Sessions, who is not supposed to have knowledge of the details of the investigation. Despite his ties to both Sessions and Alfa Bank, Benczkowski has refused to recuse himself from the Russia investigation. Whitehouse worries that, from atop his perch at the Criminal Division, Benczkowski could jeopardize the Mueller probe by “provid[ing] a back channel to his old boss and to the man in the Oval Office who’s declared open war on the Mueller investigation.” Perhaps the strongest statement came from Minority Whip Dick Durbin who said, “I cannot believe that the Republican Party couldn’t find one experienced prosecutor in the United States to take over the Criminal Division of the Department of Justice. … This is the wrong man for this job.”

That last detail relates to one even more troubling possibility: if confirmed as Acting Attorney General, Benczkowski could be in a position to take over the oversight of the Mueller probe. While he would not be the immediate next-in-line to succeed Deputy Attorney General Rosenstein’s role overseeing the investigation should Rosenstein be removed from his post, the Federal Vacancies Reform Act allows the president to temporarily appoint any Senate-confirmed official to another administration job. In other words, Trump would be able to appoint Benczkowski to take over Rosenstein’s role overseeing the probe. This arrangement would give Benczkowski wide berth to limit, hinder, or perhaps even shut down the investigation.

With all of these concerns put together, it is clear that Benczkowski is an unacceptable nominee for this position. His lack of qualifications, connections to Russia through Alfa Bank, and ties to Attorney General Sessions are simply too many red flags to overlook.

We must take action to stop Benczkowski’s confirmation. Call the Capitol switchboard at (202) 224-3121 to be connected to your senators’ offices and urge them to vote not to confirm. This vote is today at 2PM, and could have profound consequences for the integrity of the Mueller investigation. Your immediate action is needed to help protect it.