FACT CHECK: Newt Gingrich's Scathing Critique Of Trump's Justice Department
Newt Gingrich, the former Republican speaker of the House, was interviewed by Rachel Martin on NPR's Morning Edition on Wednesday.
Gingrich threw out a lot of allegations, including that the Justice Department is "very liberal" and "anti-Trump"; that Robert Mueller, the former FBI director and now special counsel in charge of the Russia investigation, is biased because of donations to Hillary Clinton from people at his law firm; and that Mueller has hired "killers" to take down Trump.
What Gingrich, who met with President Trump the day before, had to say lacked some key context. So, we at NPR decided to fact-check it and provide some of that context. Trump is still listening to Gingrich, so his comments may be indicative of what Trump believes about the Russia investigation.
Here are nine fact checks and points of context from the interview:
1. "The Justice Department is an extraordinarily left-wing institution."
The DOJ's mission statement is as follows:
"To enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans."
The department adds:
"Thomas Jefferson wrote, 'The most sacred of the duties of government [is] to do equal and impartial justice to all its citizens.' This sacred duty remains the guiding principle for the women and men of the U.S. Department of Justice."
2. " Ninety-seven percent of [DOJ's] donations went to Hillary Clinton. ... In terms of Mueller's law firm, it was 99.82 percent went to Hillary Clinton."
Gingrich's evidence for calling DOJ "an extraordinarily left-wing institution" relied on political contributions. It's a constant complaint among conservatives that government workers are liberal. And if you go strictly based on political contributions, they have a point.
On the 97 percent figure, that's true, according to an analysis by The Hill from October.
The 99.82 percent figure isn't quite right, but the actual number is still large — anywhere from 75 percent to 89 percent depending on how you calculate it.
The Center for Responsive Politics's database shows that employees at WilmerHale, Mueller's former law firm, gave $582,571 to congressional Democratic candidates and $186,726 to Republicans. That's 75 percent of donations to Democrats.
Overall, WilmerHale employees gave $1,130,577 to Democrats and $306,217 to Republicans. That's 77 percent to Democrats
For just the presidential race, here is how the donations broke down:
--Hillary Clinton (D) $326,798
--Jeb Bush (R) $32,813
--Scott Walker (R) $5,400
--John Kasich (R) $2,350
So for the presidential race, that is 89 percent of donations to the Democrat.
But these numbers are not the whole picture. A few things to also consider:
(1) Most people think about their pockets first, and Republicans are more likely to cut government and freeze pay than Democrats. "Government employees are, on balance, more moderate or more liberal as opposed to the general population. Not across the board, but in general," Hamline University professor David Schultz told The Hill in October. He added that they are "more likely to believe in government as opposed to, let's say, a privatization program."
(2) There is no record of Mueller having made a political donation.
(4) WilmerHale has represented former Trump campaign chairman Paul Manafort; Trump's son-in-law, Jared Kushner; and his daughter Ivanka Trump.
3. Who is the author of the book Gingrich kept referring to?
The former speaker repeatedly referenced a book called by Sidney Powell. The book has been widely cited among conservative outlets. Powell served as an assistant U.S. attorney from the late 1970s to late 1980s in the Western and Northern districts of Texas and in a very short stint in Virginia. She has since written for conservative outlets, such as Fox, Breitbart and Newsmax. And she has also written for the New York Observer, which was once owned by Kushner.
4. "I think that [President Trump is] deeply troubled by the entire way that both Comey and Mueller have operated."
Comey and Mueller have received bipartisan praise at varying times. That includes from Trump and Gingrich.
Democrats were irked by the way Comey handled the investigation into Clinton's private email server. Trump once said it "took a lot of guts" for Comey to announce that he would reopen that investigation shortly before the presidential election. But Trump later cited Comey's mismanagement of the Clinton email investigation when he fired him in May.
Mueller has been mum on his investigation into Russian interference in the election and potential ties to the Trump campaign, but he built up a star team of investigators and attorneys. Those moves didn't sit well with Trump loyalists.
Gingrich back in May said: "Robert Mueller is superb choice to be special counsel. His reputation is impeccable for honesty and integrity."
But a month later, after he saw whom Mueller was bringing on board, Gingrich changed his tune.
5. "In terms of people he's been hiring, these are paid killers."
As for that team, Gingrich is echoing a Trump phrase for people who are tough. Trump uses "killers" not literally, but figuratively for shrewd businesspeople he likes or lawyers or news networks he doesn't.
Despite the lawyers' years of experience, the White House has made a concerted effort to muddy up the investigators, calling out what it sees as conflicts. That strategy has centered on political contributions.
Trump has taken to Twitter to accuse Mueller of having "conflicts" based on political donations from some of those attorneys (in addition to his friendship with Comey). Other White House officials have done so as well.
"Robert Mueller has hired a number of lawyers. It is true that some of them have donated to Democrats. At least one has donated to Republicans, too. But Rachel, an important point of context here — even key Republican figures on Capitol Hill, like Senator Lindsey Graham of South Carolina, have said he does not believe political donations pose a conflict of interest. And in any event, Justice Department policies prohibit lawyers from looking at the donation history when they make hiring decisions."
Of course, Trump also has given lots of money to Democrats in the past. Up until 2011, he gave more to Democrats than Republicans. He has since made up for it to the GOP.
6. Gingrich lamented, "the degree to which the attorney general [Jeff Sessions] has not exercised any authority over" the conduct of Comey and Mueller and that "the whole point that Trump is making is that he stepped aside and therefore he's not the leader of the department."
There are a couple things here:
First, when it comes to the attorney general not exercising his authority over the actions of Comey and Mueller, Sessions recused himself from the Russia investigation because of Justice Department rules. They state, as follows:
"No DOJ employee may participate in a criminal investigation or prosecution if he has a personal or political relationship with any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution, or who would be directly affected by the outcome. Political relationship means a close identification with an elected official, candidate, political party or campaign organization arising from service as a principal advisor or official; personal relationship means a close and substantial connection of the type normally viewed as likely to induce partiality."
Sessions was a key political campaign adviser to Trump, and some of his political team now works in the White House. Even Rudy Giuliani, the former New York mayor whose name has been bandied about as someone who could replace Sessions, has said he thinks it was appropriate that Sessions stepped aside.
Also, put Gingrich's statement in the context of what Anthony Scaramucci, Trump's new communications director, said on the Hugh Hewitt radio show Tuesday. He asserted that Eric Holder, who served as attorney general under President Barack Obama, was a "pretty good hockey goalie" for the president.
The attorney general may serve at the pleasure of the president, but he is not supposed to protect him. The attorney general is expected to be one of, if not the most, independent of Cabinet officials. He should be able to do his job free from interference or influence from the White House.
When pressed, Gingrich went on to say, "It is the attorney general's job to enforce the law," but he continued to question the basis for Mueller's investigation.
Secondly, Sessions recusing himself from the Russia investigation does not mean he is not the "leader of the department." He recused himself from one investigation.
Perhaps it's revealing that Trump, and surrogates like Gingrich, are treating Sessions' recusal as if he has stepped aside from his entire job. Conservative media outlets have been urging Trump to keep Sessions on, because he is simpatico with a lot of what they believe, especially when it comes to immigration. They understand that the scope of the job is beyond any single investigation.
7. "Mueller is engaged in a fishing expedition"
Gingrich also claimed Mueller's investigation should never have been launched, because there is "no evidence of a crime." In doing so, he cited "Andy McCarthy," a former Justice Department prosecutor.
Who is McCarthy? NPR's Scott Neuman reports: As assistant U.S. attorney for the Southern District of New York, Andrew McCarthy was indeed the lead prosecutor in the successful 1995 case against Sheik Omar Abdel Rahman and 11 others in connection with the 1993 World Trade Center bombing.
In the pages of the conservative National Review, McCarthy has written on several occasions that he sees no evidence of a crime warranting the appointment of a special counsel.
How is a special counsel appointed and what reasons did DOJ give for appointing Mueller? NPR's Johnson points to the legal code for appointing a special counsel:
"The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and —
"(a) That investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and
"(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter."
"My decision is not a finding that crimes have been committed or that any prosecution is warranted. I have made no such determination. What I have determined is that based upon the unique circumstances, the public interest requires me to place this investigation under the authority of a person who exercises a degree of independence from the normal chain of command."
As for why the FBI and DOJ believe this investigation is important, it might best be summed up by Comey from his testimony back in March:
"I truly believe we are a shining city on a hill to quote a great American, and one of the things we radiate to the world is the importance of our wonderful, often messy, but free and fair democratic system and the elections that undergird it. And so, when there's an effort by a foreign nation-state to mess with that, to destroy that, to corrupt that, it's very, very serious — threatens what is America. And if any Americans are part of that effort, it's a very serious matter. And so you would expect the FBI to want to understand — is that so? And, if so, who did what?"
8. "The history of Comey's last independent counsel Patrick Fitzgerald who Comey got appointed after they knew there was no crime and after they knew who had leaked the CIA agent's name and they told the person who leaked to shut up and they then went after Scooter Libby who was Dick Cheney's chief of staff because they wanted to get Cheney and they then locked up a New York Times reporter for 85 days to get her to testify. And you looked at that record you would assume automatically Mueller is going to get somebody."
You can't be blamed if you didn't quite get all that. Don't worry, NPR's Neuman unpacks it: There's a lot here, but what Gingrich seems to be suggesting is that Mueller is likely to go on a fishing expedition because Comey hired overly zealous prosecutors in the past.
As evidence, he is pointing to the Valerie Plame case, which was prosecuted and overseen by Comey appointee Patrick Fitzgerald. Plame, you might recall, was the covert CIA officer looking into evidence of Saddam Hussein's alleged weapons-of-mass-destruction program in the run-up to the Iraq War. Her classified identity was blown by an anonymous senior administration official, who was revealed much later to be Deputy Secretary of State Richard Armitage.
But Armitage was never charged with a crime. Instead, Vice President Dick Cheney's chief of staff Lewis "Scooter" Libby was caught up in the scandal. He was eventually convicted and sentenced to 30 months (later commuted by President George W. Bush) on charges of perjury and obstruction of justice.
Gingrich appears to be saying that Fitzgerald led an aggressive and meandering investigation and that Mueller will do the same, possibly sweeping up individuals who aren't necessarily the obvious focus of the Russia investigation.
Gingrich's logic here, as well as his conclusion, though, is more than a bit strained. FBI investigations can, and often do, lead in many directions and sweep up tangential criminal activity from the original focus.
9. "If you read Sidney Powell's book Licensed to Lie and you look at the Enron case and then you look at Weinstein, he's one of the first lawyers he hired. This is a guy who the Supreme Court by 9 to 0 said destroyed Arthur Andersen."
Gingrich misspoke here. He should have said Weissmann, not Weinstein. Neuman explains the background: Andrew Weissmann oversaw corporate fraud and foreign bribery investigations at the DOJ before being tapped by Mueller for the Russia probe.
The Supreme Court case that Gingrich refers to dates to 2005. It was a big federal obstruction of justice conviction won by the government in 2002 against accounting firm Arthur Andersen LLP. Andersen employees shredded documents related to the collapse of Enron in 2001 ahead of a Securities and Exchange Commission inquiry into the energy firm.
The justices ruled that instructions to the jury didn't make clear that the government needed to prove that destruction of documents was a deliberate effort to undermine the SEC inquiry.
Madeline Garcia and Abigail Censky contributed research to this report.
Copyright 2020 NPR. To see more, visit https://www.npr.org.