There is a reason that prosecutors require predication before an investigation can begin.
Predication, defined as a credible factual allegation of either criminal activity or a threat to national security, is required by both the Justice Department’s attorney general guidelines and the FBI’s domestic investigations operations guide.
And yet, at least one grand jury has reportedly been empaneled to investigate former government officials based only on vague allegations of “lawfare,” a concept not addressed in any federal statute. According to public reporting, Miami U.S. Attorney Jason Reding Quiñones is currently leading a wide-ranging “grand conspiracy” investigation. Among the recipients of a reported two dozen grand jury subpoenas are former Director of National Intelligence James Clapper and ex-CIA Director John Brennan, as well as Peter Strzok and Lisa Page, former employees of the FBI. All of these former officials, not surprisingly, have been publicly singled out by a president who seems to be trying to turn his second term, in part, into a revenge tour.
All of these former officials, not surprisingly, have been publicly singled out by a president who seems to be trying to turn his second term, in part, into a revenge tour.
Predication exists to prevent abuses of power, including by the prosecutors who initiate criminal investigations. Checks exist along the way before a defendant can be convicted of a crime — grand jury review, due process, trial by jury, and appellate review all offer protection to a defendant. But undergoing a criminal investigation, even when it does not result in criminal charges, can be a brutal experience. Targets of investigation must expend financial resources defending themselves. They and their families endure the stress of coping with the possibility of a future in prison. And if an investigation becomes public, contrary to DOJ policy and grand jury secrecy rules, the target may also suffer shame and humiliation. For these reasons, sound policies and ethics rules prohibit prosecutors from investigating cases without a good-faith factual basis.
Quiñones, the U.S. attorney appointed by President Donald Trump to the southern district of Florida, seems to be ignoring those important requirements. Rather than simply following facts and law to bring offenders to justice, this ongoing effort appears to be targeting members of the Obama administration who initiated the investigation into connections between Russia and Trump’s 2016 presidential campaign. Just as alarming, it fits the pattern we saw with the charges brought against James Comey and Letitia James.
Earlier in December, Trump re-posted someone on social media implying former FBI Director Christopher Wray and Attorney General Merrick Garland should be arrested. Trump shared the comment, adding: “…And many others!!!” No matter that the five-year statute of limitations would appear to have expired long ago or that none of the investigative activity regarding Russia took place in Florida. After all, if the goal is simply to seek vengeance against perceived enemies, and charges are unlikely to withstand grand jury scrutiny, then issues like timelines or venue are practically irrelevant.
Indeed, the Miami probe so far seems to be doing little more than rehash the completed investigations of two special counsels, an inspector general, and a Republican-led Senate panel, all of which found ample evidence of Russia’s efforts to boost Trump in 2016. Keep in mind that Russia was — and still is — a hostile foreign adversary. The U.S. intelligence community is duty-bound to investigate and mitigate threats from such adversaries to protect our national security and our democracy.
One of those special counsels, Robert Mueller, found that while the evidence was insufficient to support charges of criminal conspiracy, there were significant ties between the Russian government and the Trump campaign. As Mueller concluded, “the Russian government interfered in the 2016 presidential election in sweeping and systematic fashion.” The findings detailed in his report give lie to any claim that the investigation was a hoax or a witch hunt. In spring 2016, for example, Trump campaign aide George Papadopoulos told a foreign diplomat that the campaign had received “indications from the Russian government” that it could assist the campaign through the anonymous release of information disparaging to Hillary Clinton, Trump’s opponent in the election. This fact alone, in contrast to the ongoing Miami investigation, is the kind of predication that not only justifies but requires opening an investigation.
But Mueller found even more links between Russia and the Trump campaign. The predicate was corroborated during the summer of 2016, when the FBI learned that Russia had, in fact, hacked into and stolen email messages from the Democratic National Committee. Mueller found that Russia attempted to influence the campaign by coordinating with WikiLeaks to publish some of the emails, a first batch in July and more in October, including on the same day as the release of the infamous “Access Hollywood” tape. In addition, Mueller reported that during the summer of 2016, high-level members of the Trump campaign, including Donald Trump, Jr., Trump’s son-in-law Jared Kushner, and campaign chair Paul Manafort, met with a Russian lawyer at Trump Tower in New York in the hopes of obtaining dirt on Hillary Clinton. Mueller also found that Manafort shared polling data for Midwestern states with Konstantin Kilimnik, whom the intelligence community assessed had ties to Russian intelligence. Hardly a hoax. An inspector general and special counsel John Durham reviewed Mueller’s work. While both found some missteps in the investigative process, none found that the investigation lacked proper predication. In her recent wide-ranging and astonishingly candid interview with Vanity Fair, chief of staff Susie Wiles painted quite the picture of Trump. But one quote feels particularly relevant here. “I don’t think he wakes up thinking about retribution,” she told Chris Whipple. “But when there’s an opportunity, he will go for it.” Predication is the thing that prevents witch hunts. Quiñones would be wise to insist on one before smearing the good names of any more former public servants.
Barbara McQuade is a former Michigan U.S. attorney and legal analyst. 
