Politics & Policy

Fixing the FBI

(Jim Bourg/Reuters)
What went wrong with the FBI is not the doing of its rank and file. It was a failure of leadership.

To fix the FBI, we need to understand what went wrong with it. It is now beyond debate, and should be a bipartisan concern of the first order, that something was very wrong with the FBI’s most senior leadership in 2016-17. It is clear that Donald Trump’s election was the catalyst for that leadership to take one of the most important organs of our government completely off the rails. The conduct of former FBI Director Comey personally, and the FBI senior leadership in his tenure, has emerged as a history of repeated conduct that now demands examination. It starts, but unfortunately does not end, with failed leadership at the bureau that in turn facilitated the bureau’s unmistakably taking up a politically driven agenda.

The facts that we already know about senior FBI leadership in the Flynn case are shocking, meeting the “shock the conscience” legal standard that justifies the rare step of dismissing a criminal case due to government misconduct. But those facts and other acts by the same cabal also meet a rule-of-evidence standard that allows consideration of a pattern of acts to show “signature” conduct, that is, that an intent to act on one occasion may be demonstrated by evidence showing similar conduct on other occasions.

Here is what Hillary Clinton and her campaign manager said about Comey’s letter to Congress, sent on the eve of the 2016 election, after his FBI discovered more Clinton personal emails about official business, according to a report in the October 29, 2016, New York Times:

“It’s pretty strange to put something like that out with such little information right before an election,” Mrs. Clinton said. . . . “In fact, it’s not just strange; it’s unprecedented and it is deeply troubling.”

“By providing selective information, he has allowed partisans to distort and exaggerate to inflict maximum political damage,” Mr. Podesta said. . . . “Comey has not been forthcoming with the facts,” he added, describing the director’s letter to Congress on Friday as “long on innuendo.”

Clinton political allies who joined her criticism then are now nonetheless intensely critical of the attorney general’s undoing the Flynn case after it was demonstrated to be the product of similar political chicanery by Comey and company.

Comey then, later, and still now wraps his political meddling in a shroud of righteousness that only he seems to see as enveloping him. He did the same when he threw an obstacle into the national-security chain of command in the now infamous 2004 “hospital visit,” when he countermanded the judgments of an attorney general who for four years had blessed collection of counter-terror intelligence on the president’s constitutional authority. At the time, whatever the merits of the underlying legal issue, Comey unceremoniously ordered emissaries from the president, there to discuss a critical national-security program, to leave the room of the attorney general and then commandeered the FBI security detail to make sure they stayed out.

He later led an FBI so loose with its obligations to the truth that one of its lawyers doctored an email being submitted in the Carter Page FISA application, resulting in presentation of a material falsehood to a court. But how does it come to be that such aberrant behavior corrupts the most senior leadership cadre of what is supposed to be — and needs to be — the world’s premier investigating agency?

Comey was at it again when personally conducting an “ambush interview” and facilitating another, both aimed squarely at the Trump presidency. Ambush interviews are not uncommon in white-collar crime investigations. When the investigator, unbeknownst to a subject, possesses facts showing that person’s guilt, an opportunity for a non-confrontational inquiry about those facts often produces the subject’s knee-jerk denial. Voila! The subject has made false statements and can be prosecuted for them.

It appears that on January 6, 2017, Comey attempted personally to ambush President-elect Trump about the contents of the now-discredited Steele dossier — one day after Comey and the then-deputy attorney general talked with outgoing President Obama about the FBI’s “Russia” investigation. Comey rushed out to his limousine immediately after telling Trump for the first time about the salacious details in Steele’s material, which had been procured on behalf of Trump’s political opposition. A computer was waiting for him to freshly record the proceeds of his ambush interview. That one did not work out so well, appearing more Keystone Cop than crack detective: The subject told the truth, and the Steele reporting was in fact garbage. Nonetheless, the ambush effort against top Trump people continued. The next trap was set not long after for then-National Security Adviser Flynn, as is now exposed for all to see. On this one, Comey even did an end run on then-Acting Attorney General Sally Yates, an Obama holdover.

This kind of conduct by senior officials of the FBI is an affront to our body politic that ought to be subject to withering bipartisan criticism and, more importantly, a bipartisan demand that the truth of what happened and why be exposed, and that the bureau be reshaped to make sure it can never happen again. But instead of looking at the source of the problem, critics are ready to shoot Barr the messenger for airing the dirty laundry and taking steps to correct results of misconduct and over-reaching. It is the FBI that needs attention, not Barr’s exercise of prosecutorial discretion.

It may be simply that Comey and company attempted to play in a high-end political arena for which they were completely ill-equipped. Their bumbling, as now exposed, certainly looks like the work of political amateurs, no matter their motive. But there also could be a more troubling explanation: that the power of the FBI was used to seek a political objective. If true, it is a stunning abuse of FBI authority. Of the self-anointed “nonpartisan” former prosecutors’ now condemning Barr, where are those concerned about that?

The damage wrought is not limited at all to misconduct seemingly aimed at the Trump presidency. What Comey and his cohorts did has harmed the work of the career FBI and Justice Department professionals whose interests Comey now disingenuously purports to represent and protect. If he cared about protecting the ability of those good people to do their jobs in a non-politicized atmosphere, he never would have usurped the function of prosecutors when he took it upon himself to both bar prosecution of Hillary Clinton in one breath and publicly condemn her conduct in the next — all done in the heated atmosphere of an emerging presidential campaign contest in which the FBI should have been decidedly a noncombatant. The dedication and professionalism in the daily work of thousands of FBI agents and support personnel in the field offices across the country is of critical value to the nation. Likewise, the federal prosecutors who take cases to court day in and day out are the tip of the rule-of-law spear. Together, the work of these professionals is the lifeblood of the justice system, and the vast majority of them perform at exceptionally high levels still. What Comey and his cohorts wrought, however, has made doing those jobs more difficult because public trust in the FBI and the justice system is eroded and questioned. The sunshine of the work Barr has commissioned to illuminate the truth is a disinfectant, not the disease; mistaking it as such because the facts have a collateral benefit to Trump is simply another mark of the hyper-partisan mindset.

So what went wrong with the FBI is not the doing of its rank and file; it was failure of leadership. It will take both time and core changes to fundamentally alter the bureau’s orientation in the senior headquarters’s ranks. A few principles might help guide doing so.

First, our political leadership needs to drop the sometimes convenient political line about maintaining FBI “independence.” Translated, that political line really needs to be understood as “when they are goring the other guy’s ox, that’s okay with us.” The FBI needs to be independent of political bias, influence, and agendas. What it does not need to be is independent of the Justice Department and its senior — politically appointed and accountable — leadership. In each instance cited above, the FBI leadership went rogue, ignoring the chain of command that makes the director, and all who report to him, subordinate to the attorney general and the deputy attorney general.

Second, the FBI leadership’s culture of arrogance needs to change. It is an arrogance born of the fact that the bureau leadership often sees itself as an island of rock where the waves of Justice Department leadership that come and go with the tides of time merely lap at its edges. Having a nearly guaranteed tenure of ten years for the director does not help to dispel that attitude. Tenure at the highest levels of the bureau should not be looked at as the pinnacle of power, but rather as the sanctity of stewardship. It is a responsibility to leave the place better than you found it.

Third, the FBI needs to be rededicated to what it is supposed to be: the best investigative agency in the world. Its motto is “Fidelity, Bravery, and Integrity.” Fidelity needs to mean commitment to excellence in all its endeavors. Bravery must be dedication to simply finding the facts, letting the chips fall where they may, leaving to the exercise of prosecutors’ discretion the decisions of how to act on those facts. Perhaps in the most critical application of a term in the motto, integrity has to mean much more than acting with the utmost professionalism. It means that the facts are to be found without fear or favor, and every effort must be made to render the bureau’s factual findings unassailable.

Barr’s courageous willingness to withstand partisan criticism to get to the bottom of the conduct of the FBI, and perhaps other organs of government, in connection with the 2016 election is the essential first step to making the FBI right for the future. It will not be the last.

George J. Terwilliger III is a lawyer in Washington who previously served for 15 years in the U.S. Justice Department, including as deputy attorney general and acting attorney general.

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