South Texans were stunned last week at images of the FBI raiding the home and Laredo campaign office of U.S. Rep. Henry Cuellar, hauling off boxes of evidence including a computer. At least as surprising as the raid itself was its timing.
The Justice Department’s longstanding policy is to avoid affecting the outcomes of elections. All employees of the department’s Criminal Division are forbidden by its ethics regulations from expressing “opinions about candidates and issues” in the course of their work.
Out of the same concern the department has long maintained a practice of not taking public actions against candidates during the run-up to an election. Yet the raid took place less than four weeks before early voting begins for the March 1 primary, in which the nine-term Democrat faces two challengers.
That practice can be particularly problematic in Texas. Because of our ridiculously early primary, the federally sensitivity to timing can begin as early as the fall before the primary and last until the general election in early November.
That means that nearly a year — almost half of the term of a House member — can be in the red zone.
One might expect that the concern about affecting elections would be heightened still after the storm over then-FBI Director James Comey’s handling of the the controversy involving presidential candidate Hillary Clinton’s emails in her 2016 race against Donald Trump. In July 2016, Comey held a press conference in which he said Clinton’s handling of sensitive emails was “extremely careless” but did not rise to the level of a criminal offense. Case closed.
Then, 11 days before the November election he announced that a new trove of emails had been found and the investigation had been reopened. The Trump campaign had a field day with the disclosure. The controversy received an enormous amount of attention and may well have contributed to Clinton’s loss. Eventually a State Department investigation concluded that there was “no persuasive evidence of systemic, deliberate mishandling of classified information.”
Experts I’ve talked to say such an action such as the Cuellar raid this close to an election is rare but not unprecedented. One possibility, according to one expert on federal corruption law who asked not to be identified, is that prosecutors face a statute of limitations deadline and feel the information they may get from the raid is crucial for a possible indictment.
This expert also cautioned that while it is reasonable to speculate that Cuellar is a target of the investigation, it is also possible that he is not. ABC News reported the raid was connected to a federal investigation in which a grand jury has issued subpoenas seeking records related to Cuellar and to companies and organizations with ties to Azerbajian. Sometimes investigators conduct court-authorized raids such as this one on key witnesses who are considered to be friendly to the target or targets and may not be cooperative.
Cuellar’s office has said he is fully cooperating with the investigation, but as former President Donald Trump and his allies have shown, it is not difficult to at least delay production of documents and other materials. On Tuesday, Cuellar released a video statement saying the investigation will show “there was no wrongdoing on my part.”
One thing is for certain: The raid was not conducted without authorization from at least the deputy attorney general, if not from Attorney General Merrick Garland himself. A Justice Department’s handbook says, “United States Attorneys’ offices and Department litigating divisions must submit Urgent Reports to inform Department leadership, including the Attorney General and the Deputy Attorney General, of (1) major developments in significant investigations and litigation, (2) law enforcement emergencies, and (3) events affecting the Department that are likely to generate national media or Congressional attention.”
The Cuellar raid, of course, generated considerable national media and Congressional attention. The handbook made the requirement more specific. It said the attorney general and deputy AG must be informed if a public action such as a raid involved a “national or statewide public official, public entity, or prominent public figure as a party, subject, target, or significant witness.”
Not only would this raid require that the top brass be notified (with an understanding that if they objected it would be canceled), but the Justice Department would have to convince a federal judge that there was sufficient probable cause to invade Cuellar’s home and office and cart off a large amount of material.
It is very unlikely that both the top Justice Department brass and a federal judge would authorize the raid without strong “probable cause” evidence being provided.
So the raid is a terrible kickoff for Cuellar’s reelection campaign, for which he started his TV advertising just a few days later. He faces a serious opponent, Laredo attorney Jessica Cisneros, who came within four points of him two years ago, and another Democratic challenger, Tannya Benavides.
While the publicity surrounding the raid should boost Cisneros’ campaign coffers, her campaign was wise to issue a cautious statement saying, “We are closely watching as this develops.” The fact is that in recent years indicted politicians have been repeatedly successful at the polls.
Time Magazine ran a story in 2018 that was headlined: “Indicted and Elected: Candidates Accused of Crimes Won Big in the 2018 Midterms.”
“Voters reelected two Republican Congressmen, Chris Collins of New York and Duncan Hunter of California, who are facing federal indictments for alleged insider trading and campaign corruption, respectively,” Time reported.
The article also reported that Texas Attorney General Ken Paxton was reelected while under a felony indictment that still has not gone to trial. In addition, New Jersey Sen. Bob Menendez, whose bribery trial had recently resulted in a hung jury, was reelected.
Of course, Cuellar could be reelected and still not be out of trouble. Collins, for example, resigned and pleaded guilty to insider trading and lying to the FBI. Having been the first congressman to endorse Trump in 2016, he also received a presidential pardon.
Hunter also would later plead guilty. His offense was using campaign funds for personal endeavors, including vacations, meals, and personal items. Trump also pardoned him.
Menendez came out better. The charges against him were dropped.
That leaves Paxton, who remains under indictment on state securities charges and apparently is still being investigated by the FBI after seven top aides were fired or resigned after accusing him of bribery and other crimes. The question is, will he become the second Texan this year to have the distinction of suffering an exception to the Justice Department’s normal election season moratorium?
