That didn’t take long. News that the Department of Justice may have hidden information from Congress about a Russian bribery-extortion ring involving nuclear materials got a swift response from Senate Judiciary chair Chuck Grassley. After first peppering Attorney General Jeff Sessions about the allegations raised in The Hill, Grassley sent a letter to the attorney representing the FBI informant inviting her client to testify about the operation in a committee hearing, Circa reports:
Senate Judiciary Chairman Charles Grassley asked the attorney of a former FBI informant Wednesday to allow her client to testify before his committee regarding the FBI’s investigation regarding kickbacks and bribery by the Russian state controlled nuclear company that was approved to purchase twenty percent of United States uranium supply in 2010, Circa has learned.
In a formal letter, Grassley, an Iowa Republican, asked Victoria Toensing, the lawyer representing the former FBI informant, to allow her client, who says he worked as a voluntary informant for the FBI, to be allowed to testify about the “crucial” eyewitness testimony he provided to the FBI regarding members of the Russian subsidiary and other connected players from 2009 until the FBI’s prosecution of the defendants in 2014.
Toensing’s client was an American businessman who says he worked for four years undercover as an FBI confidential witness. Toensing said he was blocked by the Obama Justice Department, under then Attorney General Loretta Lynch, about testifying to Congress about his time as an informant for the FBI. He contends that he has pertinent information that the Russian’s were attempting to gain access to former President Bill Clinton and his wife, then Secretary of State Hillary Clinton, to influence the Obama administration’s decision on the purchase of Uranium One, Toensing said.
The informant had signed a non-disclosure agreement (NDA), which Toensing and the informant claim the DoJ used to threaten him with prosecution if he talked about the case. Under normal circumstances it might take a subpoena to overcome an NDA. (This was a plot twist in the film The Insider, a docudrama starring Al Pacino and Russell Crowe about tobacco-industry whistleblower Jeffrey Wigand, but it’s not clear whether that particular episode was a dramatization or factually accurate.) Thus far, Grassley has not been authorized to issue a subpoena, which would take a majority vote by Judiciary — probably a formality, considering the acute issues here.
There are two mitigating factors for why a subpoena may not be necessary. For one thing, the DoJ is under new management, and Sessions likely isn’t inclined to be hostile to this testimony. He gave a rather non-committal answer yesterday in the committee hearing when asked about it, perhaps simply unprepared to give an answer on the issue so soon:
In response to questioning by Sen. Chuck Grassley (R., Iowa) during a Wednesday Judiciary Committee hearing, Sessions said only that the Justice Department would “take such actions as is appropriate.”
“Mr. Chairman, we will hear your concerns. The Department of Justice will take such actions as is appropriate, I know,” Sessions said, noting that “some people involved have gone to jail in that transaction already.”
“Without confirming or denying the existence of any particular investigation, I would say I hear your concerns and they will be reviewed,” he added.
Second, the NDA may not be enforceable anyway. Paul Mirengoff explains at Power Line:
I haven’t researched the issue, nor have I seen the non-disclosure agreement. However, it seems to me that, as a general matter, a non-disclosure agreement that bars someone from testifying before Congress on a matter of national security concern is contrary to public policy and thus not enforceable. In addition, constitutional issues may be raised when the executive branch tries, by invoking an employment contract, to prevent somebody from giving information to the legislative branch.
However, threatening a potential witness with criminal prosecution based on a non-disclosure agreement, as the Obama Justice Department allegedly did in this case, would tend to discourage an individual from testifying. It seems to have done so here.
If the NDA wasn’t enforceable, then it was used as an intimidation tactic. Grassley might want to ask people at the DoJ during that period of time why it was employed in that capacity, and why they were so anxious to keep Congress from finding out about the Russian bribery and extortion operation. And for that matter, Grassley should also ask just exactly who was anxious, and gave the orders to silence this whistleblower when it mattered.
Let’s just say that this hasn’t gotten a lot of traction in the last couple of days, while most media outlets are parsing phone calls to Gold Star families. Gotta have your priorities.