President Harry Truman saw the FBI as the seed of a totalitarian cancer it would later become. “We want no Gestapo or Secret Police,” Truman wrote. “F.B.I. is tending in that direction. They are dabbling in sex life scandles [sic] and plain blackmail when they should be catching criminals.” Whether it’s mass unconstitutional spying, interfering in American elections, lying to courts, or entrapping and sometimes framing innocent Americans, the debate over whether we should have an FBI is drawing to a close. Almost every month another informed author calls for the abolition of the FBI.
So let’s move on to the next question: How do we get rid of the FBI?
In theory, a properly motivated Congress could defund and shutter the FBI with a simple piece of legislation. Unfortunately, until Democrats and establishment Republicans swallow their fears and wake up to the threat the FBI poses to self-government, the FBI remains above the rule of law and beyond the reach democratic accountability.
Still, there are incremental steps that could be taken to challenge the lawlessness of this untouchable agency. The winds of public opinion have begun to blow strongly against the FBI making the previously unthinkable possible. Republicans and Democrats should join together to take action, if they still can.
End the FBI’s Counterintelligence Work
There’s a reason why the FBI loves to paint its opponents and political rivals as, “agents of Putin,” or stooges for Russia. Through the Russian collusion hoax, the public learned that the FBI can use a false allegation of a target acting as a foreign agent to spy on political opponents. While the FBI, in theory, was supposed to have probable cause that Carter Page, a figure in the Trump campaign, was an agent of Russia, it lied to the FISA court to conceal Page’s history of providing information voluntarily to the CIA. Through the warrant to spy on Page, the FBI (in coordination with subcontractors for the Clinton campaign) spied on the Trump campaign. Long after the FBI knew there was “no there, there,” it used the sham counterintelligence investigation to engineer the appointment of a special counsel to interfere with the peaceful transition of power.
The FBI has been ineffective at using the FISA court to catch real spies, however, preferring instead to reverse engineer warrants on real American targets who happen to have some incidental contact with a Russian. The FBI has shown it cannot be trusted with the domestic counterintelligence brief and that power should be reassigned to an agency that won’t abuse the power.
Combatting Elected Officials’ Fear of the FBI
Truman also wrote, “Hoover would give his right eye to take over, and all congressmen and senators are afraid of him.” Democrats are fools if they believe the FBI is a reliable ally. Truman would know. The FBI attempted to throw the 1948 presidential election by leaking to Republican challenger Thomas E. Dewey “compromising information about President Harry Truman’s former association with the Kansas City political machine of the corrupt boss Tom Pendergast. The details soon found their way into Republican campaign literature.”
Politicians feared the FBI because of its ability to plant and spread stories with the imprimatur of the bureau as a source. When the FBI sees a candidate engaged in real corruption, however, it seems to do the opposite, running interference with the news media to protect that candidate by suppressing news stories or characterizing politically inconvenient evidence as “Russian disinformation.”
The problem is a thorny one because the FBI’s access to the vast national security databases (and its willingness to abuse them to spy on Americans) acts as a powerful psychological deterrent to politicians seeking to challenge the bureau.
One solution might be to demand of political candidates a pledge to publicly disclose any attempt by any member of the FBI to gain leverage over that politician. Further, the FBI should be required to register and report to the Justice Department’s Office of Inspector General any contact with a political candidate, his family, an elected official, or a journalist.
Under the Freedom of Information Act, a request for information made to any government agency shall be processed within 20 business days, or approximately 30 calendar days. The FBI simply ignores this requirement, often insisting on a timeline of years.
In one typical case, the FBI claimed it could not produce records of its surveillance of civil rights activists for 17 years. Both the Justice Department and its subordinate FBI have intentionally structured their FOIA systems to fail to keep up with public demand for records. This should be forbidden. Congress should force both agencies to provide the resources and staffing to meet the statutory deadline for documents. There’s little difference between the FBI being allowed to delay a request for 17 years and simply ignoring the law altogether.
The practice of slow-rolling FOIA requests lets the FBI and the Justice Department operate in near total secrecy, something that is anathema to democratic governance. If the FBI’s failure to follow FOIA time limits pertains to requested documents evidencing FBI misconduct, a requesting party should get attorney’s fees if it becomes necessary to sue to overcome stalling or obstruction.
Similarly, the FBI uses the excuse of a matter being under “active investigation” to block requests for materials that would potentially embarrass the bureau. Director Christopher Wray is particularly adept at claiming any topic that could shame his agency is “under investigation,” thus precluding him from discussing the matter. When the FBI wants to cover something up, say, the provenance of a laptop containing evidence of corrupt dealings of a favored politician, it simply keeps the investigation open for years and years, long past the point any serious investigation would have concluded.
Congress can and should define the limits of this “under investigation,” secrecy. Too often the FBI has held open an investigation into a matter of public interest while leaks aligning with the FBI’s interests continue to crop up in sympathetic media. After six months’ allowance of such secrecy, the FBI should be required to seek approval from the local U.S. attorney to certify the legitimacy of the continued secrecy. After a year, ongoing confidentiality should require approval from the attorney general himself. When the FBI does close a matter, it should notify the target in writing so he may combat the negative publicity the FBI generated in the first place.
And if it turns out that an FBI agent leaked details of the investigation to the press, the entire privilege should be waived for the remainder of the investigation. If the FBI can leak some of the details, the public should get all of the details.
End or Limit the Stings and Set-ups
The FBI must go to great lengths to justify its sprawling, worldwide empire. The bureau makes little or no dent in the crime that really plagues Americans. A typical FBI case more resembles the work of a fisherman who secretly places a store-bought fish on his hook before reeling it in to great public fanfare.
After 9/11, the FBI scoured the Muslim community for mentally vulnerable targets who could be coaxed into participating in the FBI’s make-believe terror plots. More recently, a jury rejected the FBI’s contrived plot to “kidnap” Michigan Governor Gretchen Whitmer when it turned out that the FBI funded and set up the whole thing—even to the point of facilitating introductions among the “conspirators.” This is also why many in the public are alarmed that the FBI had informants inside the crowd that breached the Capitol on January 6.
The FBI should not be allowed to justify its existence by making its own criminal plots. Congress should pass laws permitting expedited discovery in criminal cases and a procedure for quickly dismissing cases where the suspects were not already criminals when the FBI started its investigation. And while we’re at it, the Justice Department should not be able to hold defendants in jail for a year without trial or bail to coerce plea deals.
Do Not Let the FBI and Justice Department Investigate Their Own
The Justice Department Office of the Inspector General repeatedly has published reports detailing criminal misconduct by FBI and Justice Department personnel. When it refers these cases for prosecution, the vast majority of bad actors are not prosecuted, the case of former USA Gymnastics doctor, Larry Nassar, being one such example. This has led some to nickname the Justice Department, the Department of “Just Us.” Obviously, the Justice Department and the FBI do not apply the same rules to themselves that they expect the public to follow.
Congress should pass legislation requiring the appointment of a special counsel to investigate and prosecute FBI and Justice Department personnel credibly accused of criminal misconduct. Further, the inspector general should have the power to arrest and refer for prosecution any Justice Department or FBI employee caught abusing his power for personal gain or for partisan political advantage.
End Self-funding Through Forfeitures
Under the 1984 Comprehensive Crime Control Act of 1984, the Justice Department uses money seized and forfeited from the public to help fund its operations. It can use additional portions of forfeited assets to kick back sweeteners to local law enforcement that helps the FBI. As I wrote here, this degrades Congress’ ability to oversee this powerful agency. Instead, all forfeited funds should be returned to the treasury under the Miscellaneous Receipts Act. If the Justice Department can’t use the money it takes from the public, often without criminally charging anyone, then the incentive to abuse the program will be reduced.
The best course of action is for Congress to just scrap the FBI. But short of that, our elected leaders must exercise their power to re-impose constitutional supremacy over this out-of-control agency.