Timing of FBI raid on Henry Cuellar’s home so close to election raises questions

Posted at 2:48 PM, Feb 01, 2022
and last updated 2022-02-01 15:48:49-05

The FBI raid at U.S. Rep. Henry Cuellar’s Laredo home made for a damning drama: a swarm of agents descending upon his property with a warrant in hand, emerging later with a computer and plastic bins and bags full of personal belongings.

Those optics aren’t an afterthought for the U.S. Department of Justice. Nor is the timing — which in Cuellar’s case came less than two months before the March 1 primary election. That poor political timing has raised questions among legal experts about why the Justice Department, which had to sign off on such an investigation, didn’t authorize the raid either months before this primary or later in the spring to minimize impact on the election.

“In general, the department has shied away from taking any overt investigative actions against political figures when an election is looming,” said former Justice Department official Emily Pierce. Pierce and other former department officials told The Texas Tribune that the Justice Department is typically sensitive to the devastating power of these images that can cloud a candidate’s reputation before that person can defend themselves in the legal system.

The shadow of a criminal investigation is tough for any elected official to navigate. But Cuellar also happens to be in the fight for his political life in his South Texas Democratic primary, where he’s up for his 10th term in Congress, and facing challengers Jessica Cisneros, an attorney, and Tannya Benavides, an educator.

Cuellar hasn’t been charged with a crime, and he said in a public statement that he’s confident the investigation will clear him of wrongdoing. Furthermore, he’s stressed that he’s all in on the primary race and intends to win reelection.

A spokesperson for the Justice Department declined to comment for this story, as did Cuellar’s representatives.

Six former Justice Department employees interviewed by the Tribune said the most common reason for an investigation so close to an election was fear of a continuing crime, like destruction of evidence or a flight risk.

“The reasons they might decide to contravene that policy include a reasonable fear that evidence could be lost or destroyed, indications that a subject might be trying to leave the country or anything else that might impair the future of the investigation if they don’t act in a timely way,” Pierce said.

“Without knowing the specifics of the case, it’s impossible to say whether they feared some criminal intent to destroy evidence or whether there was a more benign reason they felt they had to act quickly,” she added.

To be sure, it’s possible the investigation may never yield charges.

“We should not presume that a crime has occurred here or that the government is convinced that a crime has occurred,” Edward Loya Jr., a Dallas-based attorney, said in an email. Loya served in the department’s Public Integrity Section, which handles corruption cases across the country.

“All we know for sure is that the government is gathering information it needs to make an assessment of the allegations with which it has been presented,” he added.

John Bash, a defense attorney who has worked at the Justice Department both in Washington and as a U.S. attorney in Texas, said the department operated under “a rule of thumb” in which the Justice Department avoids indictments and overt investigative activity like searches 60 to 90 days before an election.

“None of that means that sitting members of Congress are above the law, but there’s an interest in making sure DOJ’s role isn’t political and … DOJ is not perceived as being involved in politics,” he said.

There’s precedent for how the Justice Department handles investigations into political figures and also how it’s fumbled in the past.

Democrats remain deeply embittered with the FBI from 2016 and former director James Comey’s investigation into Hillary Clinton’s handling of classified information by way of a private email server.

Comey took unprecedented actions as Clinton was running for president, outlining in July 2016 how she and her staff were “extremely careless,” but not criminal. Typically, the department does not explain why it chooses not to indict.

Then 11 days before the election as voters were already casting early voting ballots, Comey announced he was reopening the investigation into Clinton based on new evidence recovered, only to announce on the Sunday before Election Day that the FBI’s recommendation to not prosecute stood.

Many Democrats — and pollsters — point to that moment as critical to Clinton’s loss.

Years later, former U.S. Deputy Attorney General Sally Q. Yates testified before the Senate Judiciary Committee in a 2020 hearing on the investigation into Russian interference in the 2016 election. She discussed how her office took special care to avoid the appearance of political interference in an election as her office investigated Trump campaign official Paul Manafort. Manafort was later convicted of tax fraud, bank fraud and failure to disclose a foreign bank account. He was pardoned by President Donald Trump in late 2020, just before he left office.

Yates described giving orders to the FBI to ensure “they weren’t doing anything publicly with respect to Mr. Manafort, even though he was no longer even with the campaign at this point … because that could be unfair to then-candidate Donald Trump.”

“We didn’t take any action, whether it was a case involving a local sheriff or a governor or a senator,” Yates said at the hearing. “We wouldn’t take any action that could potentially have an impact on the election. … It’s not just to be fair to that individual, but also to ensure that the public has confidence that this power is not being used to impact an election.”

Notably, the FBI raid on Cuellar’s house comes during a Democratic administration.

“Given today’s political climate and Congressman Cuellar’s powerful position in Congress, I would be surprised if the Attorney General’s office were not consulted,” Loya said.

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2022/02/01/henry-cuellar-fbi-raid-election/.

The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.