At the end of the fourth episode in the third season of Netflix’s “Ozark,” protagonist Marty Byrde (Jason Bateman) tells his Mexican drug cartel boss how he’s going to deal with the FBI investigation that threatens their massive money laundering operation: He’s going to turn the FBI agent at the head of the investigation.
“In a matter of months,” Byrde says, “she’s going to be working for me. And then we’re all safe.”
It’s a nightmare scenario for law enforcement: An agent empowered with the awesome tools of law enforcement turning those tools to criminal ends. The plot of “Ozark” is fictional but it is entirely plausible. The FBI has gone to great pains to create procedures and protocols to safeguard against exactly the kind of danger suggested in the hit Netflix series. Yet, under FBI Director Christopher Wray and his recent predecessor James Comey, those procedures have crumbled to ineffectiveness. The FBI is now ripe for a Marty Byrde to corrupt and turn an agent.
It’s happened before. And under Wray, it will surely happen again if it hasn’t already. New information from the Department of Justice’s inspector general provides even more confirmation of Wray’s neglect as the FBI increasingly drifts towards lawlessness.
In the latest revelation, the inspector general documents how the FBI repeatedly fails to develop proper justification for its spying under the Foreign Intelligence Surveillance Act (FISA). These are safeguards that ensure that the FBI surveillance powers are not being used for non-law enforcement purposes.
Viewed in isolation, the various FBI scandals that seem to emerge every few months, can seem troubling but not indicative of a pattern of corruption within the organization at large. Yet these shortcomings intersect to create a fertile opportunity for the Marty Byrdes of this world to corrupt and subvert the FBI into a tool for criminals.
The Byrde-Bulger Nexis
Let’s start with the (semi-)fictional relationship between Byrde and his FBI handler. The Netflix series depicts it as a cat-and-mouse battle of wits between the two characters. This brings to mind the very real scenario in which Whitey Bulger seduced his handling FBI agents to reverse the relationship. Bulger ascended to the top of the organized crime pecking order in Boston using a two-decade relationship with the FBI. The FBI protected Bulger from multiple investigations while using its power to crush his rivals. Bulger even acted on tips from his corrupt FBI handlers to torture and murder potential witnesses against him.
The corrupt agent who handled Bulger faked his value as a confidential human source (CHS) to fool FBI internal safeguards. Although the FBI responded to the Bulger episode with significant reforms, a recent inspector general report reveals a present-day and shocking lapse in these reforms.
Among the concerns: 1) FBI relationships with informants frequently continue for more than five years without a prosecution (raising the question as to why the relationship even exists); 2) the FBI has allowed the office in charge of overseeing the FBI’s CHS program degrade to approximately 15 percent of its full strength; 3) about a third of the sampled FBI/CHS relationships required “supervisory intervention” because of inappropriate circumstances. These included a variety of “overly familiar relationships.”
For example, the report noted an earlier instance of at least one agent inappropriately sharing sensitive investigative information in the course of an intimate (sexual) relationship with his source. If nobody is monitoring an FBI/CHS relationship, it dramatically increases the danger of a Bulger-style role reversal in which the handling agent becomes a de facto employee of the informant.
When Sources Become Handlers
Second, a key backstop of criminally deterring agent corruption has also eroded. As reported in Eric Felten’s outstanding piece in RealClearInvestigations, the Department of Justice, of which the FBI is a component, has a problem with enforcing the law equally when one of their own commits a criminal act.
Felten identified 27 instances of the Justice Department’s inspector general identifying criminal misconduct by Justice and FBI personnel that went unprosecuted. The examples range from an unprosecuted shoplifting of $257.99 worth of beauty products, making false claims on mortgage documents, and lying to investigators.
Why, for instance, would an FBI agent suspected of wrongdoing cooperate with an internal FBI investigation when then-Deputy Director Andrew McCabe could repeatedly make false or misleading statements during an investigation with no criminal consequences.
Recall that McCabe’s wife was the beneficiary of a bonanza of campaign cash from a Hillary Clinton ally. The Wall Street Journal reported: “At the time the investigation was launched in July 2015, Mr. McCabe was running the FBI’s Washington, D.C., field office, which provided personnel and resources to the Clinton email probe.” By the following year, Clinton’s FBI problems receded. Instead the FBI began using Clinton’s opposition research to investigate Donald Trump and his campaign. Marty Byrde couldn’t have engineered a better outcome for Clinton.
Other examples include the non-prosecution of senior Justice Department attorney Bruce Ohr for involving himself in the same matter for which his wife was being paid by the Clinton campaign (in violation of 18 U.S.C. §208) and the non-prosecution of false statements of Christopher Steele, an FBI informant.
Worse yet, Felten reported, the Justice Department routinely protects its own bad-actor employees from public embarrassment by allowing them to anonymously resign and transition to lucrative jobs in the private sector. Thus, a real-life agent might see little risk in accepting inducements from a Marty Byrde-type figure. The Justice Department seems more inclined to protect the bad apples than to root them out. This isn’t speculation. Read here for an example of the Justice Department declining prosecution of an FBI agent who accepted bribes from his own confidential source.
Then there is the corruption of the FBI’s vast and awesome surveillance powers. As Felten reports in another recent story, a Whitey Bulger scenario played out through the handling of paid FBI informant Christopher Steele. While Steele worked for the FBI, he also took money from the Clinton campaign as a subcontractor to Fusion GPS. And as in the Bulgar scenario, Steele perverted the relationship to make the FBI his informant.
Felten writes: “a team of FBI agents in early October 2016 shared with Steele extensive classified materials . . . The secrets included foreign intelligence information still considered so sensitive that the IG’s report refers to it even now only as coming from a ‘Friendly Foreign Government.’”
This after Steele disclosed to the FBI that Clinton was being briefed on Steele’s work. The inspector general confirmed that Steele passed this sensitive information back to Fusion co-founder and former Wall Street Journal reporter, Glenn Simpson. It’s reasonable to assume that Simpson shared the information with his ultimate paymaster, the Clinton presidential campaign. When the FBI formally terminated Steele after he was caught red-handed abusing his status as an FBI informant by leaking anti-Trump information to the media, the players simply inserted senior Justice Department attorney Bruce Ohr as an additional buffer between the FBI and the Clinton campaign.
This brings us to the new revelations released by the inspector general at the end of March. Following the report exposing shocking perversion of the FISA process to spy on Trump campaign figure Carter Page, the inspector general followed the revelations to the next logical question: Was the spying on Carter Page a “one-off” or was it representative of an entire culture of the FBI abusing its spying powers?
The Justice Department’s inspector general was so shocked by what he found that he issued a highly unusual “Advisory Memorandum.” The FBI is supposed to ensure that its spying on Americans is done for true criminal law enforcement reasons. In both the Bulger and Steele CHS relationships, the FBI allowed its most sensitive information to flow back to its confidential informants.
To safeguard against abuse of spying powers under FISA, the FBI is required to follow “Woods Procedures.” The FBI has to certify that it has “probable cause” to believe the target of its spying is committing a crime. If the FBI can’t show that it’s spying to investigate a crime, it naturally raises the question: Why the hell is the FBI spying on this person?
It’s easy to see why a political candidate, for example, might want the fruits of FBI surveillance on her political opponent. A criminal figure like Whitey Bulger would similarly thirst for intelligence gathered from FBI surveillance of his rival. Thus, these “Woods Procedures” are a way to ensure the investigation isn’t actually being used for a non-law enforcement purpose to the benefit of a Christopher Steele, Whitey Bulger, or Marty Byrde.
The new inspector general report appears to confirm civil libertarians’ worst fears. While the FISA court hands out over 1,000 warrants per year, the OIG took a small sample to conduct its audit. Of the selected sample of 29 FISA applications, the FBI could not even produce the “Woods file” in four instances. In three of those instances, the FBI did not know if the Woods file ever existed. In the remaining 25 FISA applications, the review determined that files were full of alleged facts that were not supported, corroborated, or were at odds with the available evidence.
The inspector general identified an average of 20 factual errors or omissions per application. About half of the sampled files relied on information from confidential human sources, much of which was not properly corroborated in the Woods file.
In other words, the entire FBI FISA surveillance program may be plagued by the abuses that turned up in the Carter Page FISA abuse scandal. The FISA court has already ordered a review of the 29 applications sampled by the OIG. This is the wrong reaction. The inspector general tested only a representative sample of the entire FBI FISA program. The FBI failed that test. All of the FBI’s FISA applications to spy on Americans are suspect.
Marty Byrde had access to a vast network of investigators and endless cash with which he might corrupt his FBI handler. While the figures in the Netflix series are fictional, there are plenty of very real criminals and political figures with strong motives and endless means to corrupt individual FBI investigations. And recent inspector general reports indicate the Justice Department permits continued decline in the already ineffective safeguards protecting the public from this terrifying corruption.
This is how Mexicans lost their country to cartels. Freedom loving Americans should be alarmed.