Everyone has been buzzing lately with the news of Supreme Court Justice Kennedy’s impending departure, and the nominee to replace him. But what has been less covered is the recent confirmation by the Senate of the new leader of the Justice Department’s Criminal Division – Brian Benczkowski. He has the power to significantly affect the lives of both criminal defendants and criminal defense attorneys – so who is he?
For 18 months, the Criminal Division has been without a permanent head, and his confirmation took several months – 13 months since his nomination. This was in large part because he did legal work for a Russian bank, and is close to current Attorney General Jeff Sessions. In the past, he served as a Senate aide to Mr. Sessions. He worked for Alfa Bank in 2017, which has connections to officials within the Russian government and was the subject of a criminal investigation due to suspicious internet traffic with the Trump organization. In his previous role in private practice, his firm helped Alfa Bank investigate whether its servers had actually been in contact with the Trump organization – a key question in the current investigation of potential Russian collusion. The FBI investigated, finding that the data between the two organizations was not suspicious or clandestine. Yet, critics of his nomination felt that this displayed poor judgment when he decided to take the case.
Senate Democrats asked for the withdrawal of his nomination, citing the potential conflict of interest with the current investigation into the Trump administration and potential collusion with Russia before and during the 2016 election. During his confirmation hearing, he admitted that he would recuse himself from any investigation or prosecution concerning Alfa Bank for the first two years of his tenure if he were confirmed. Yet, all ten Democrat senators within the Judiciary Committee voted against his confirmation.
Other Senators also expressed concerns about his lack of experience. Mr. Benczkowski has never served in any sort of prosecutorial role, but he did manage the daily affairs of the Bush administration’s justice department and helped in transitioning the department for the incoming Trump administration. Oversight of the Russian investigation could potentially be transferred to him, and he could also share information about the investigation with Mr. Sessions, in spite of his recusal. As head of the Criminal Division, Senators were also worried that the investigation could be delayed by denying requests that came to him. In the end, the Senate narrowly confirmed him, at a vote of 51-48, largely along party lines. Senator Joe Manchin, III of West Virginia was the only Democrat to vote in favor of Mr. Benczkowski’s confirmation.
He is decidedly a Washington insider. He’s served as the Chief of State for the Office of the Attorney General and was the Republican Staff Director for the U.S. Senate Committee on the Judiciary. He has also worked in private practice, at the D.C. branch of the law firm of Kirkland & Ellis, since 2016. His expertise was in litigation and white collar criminal defense – particularly in government or internal investigations. Whether or not any of the Democratic Senators fears come to fruition remains to be seen. For now, Mr. Benczkowski’s confirmation has been applauded by leaders in the Department of Justice and Republicans.