The FBI Needs to Be Reformed

Inspector General Michael Horowitz’s report last week told a complex story about extraordinary events related to the investigation of officials in Donald Trump’s 2016 presidential campaign. Its publication predictably ignited a contest between Democrats and Republicans to extract from the 429-page opus what was most serviceable in the construction of competing political “narratives.”

But there is something much more important in the Horowitz report than evidence for political vindication. The report shows that serious reforms are vitally needed in how the FBI and the Department of Justice, of which it is a component, open and conduct investigations—especially those related to politicians and political campaigns. The report prompted concerns from both sides of the aisle, suggesting that there’s an opportunity for serious reflection and reform—if Congress and the executive branch can seize it.

The mere fact or even hint of investigation into a campaign threatens protected speech and political activity, and, worse yet, threatens to taint the democratic process by unduly influencing electoral outcomes. Such investigations are all the more fraught because the FBI has a long history of using investigations and secret surveillance against American citizens for political ends, including to favor one party over another, or to serve the FBI’s institutional interests at the expense of elected officials.

These tactics, when publicly disclosed in the 1960s and ’70s, almost destroyed the bureau. The FBI survived with its powerful investigatory and surveillance powers intact only because it entered into a “grand bargain” with Congress and the American people about the use of such powers.

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The central elements of that bargain, as one of us previously explained, were as follows:

The president and his intelligence bureaucracy were allowed to maintain robust surveillance and espionage capacities, including domestically. But in exchange, Congress subjected them [to] significant legal restrictions on how they collected, analyzed, and disseminated intelligence information; a bevy of lawyers throughout the intelligence community and, over time, in the Justice Department monitored and enforced those restrictions; domestic surveillance required a court order, including a court order from a new court, the Foreign Intelligence Surveillance Court, for foreign intelligence investigations; and two new committees, the Senate and House Intelligence committees, were to be kept “fully and currently informed” of all significant intelligence activities, and would have robust oversight authorities. The idea was that the use of these powers would be documented and watched by institutions that could be trusted to keep secrets but would act as credible surrogates for public oversight mechanisms.

The point of these arrangements was not only to ensure the American people that the FBI (and other intelligence agencies) did not in fact use their powers for political ends, but also to ensure that they did not appear to use their powers for these ends.

The FBI has taken a large hit in its credibility over the last four years, due in large part to Trump’s unprecedented, reckless and routinely baseless attacks on it. But the Bureau has also hurt itself by its conduct of the investigation of Trump campaign officials and of Hillary Clinton’s emails when she was a presidential candidate. Horowitz, in his latest report, and in three earlier ones related to the 2016 election, has documented what appear to be serious failures of policy, process, and decision-making at multiple levels.

While Republicans now link the failings detailed by Horowitz to a “deep state” that is biased against their party and determined to take down Trump, Democrats remain aggrieved by Bureau actions that they believe fatally damaged their 2016 presidential nominee. Among Democrats’ numerous other concerns about the conduct of the Clinton email investigation, they were appalled by reasons to believe that a “a deep and visceral hatred” of Hillary Clinton in the FBI’s New York field office led agents to leak investigative information to Rudy Giuliani and Devin Nunes, and that the threat of further leaks informed the FBI’s decision to notify Congress, only 11 days before the 2016 election, that it had reopened the Clinton email investigation.

The problems at the FBI revealed by multiple inspector general investigations do not cut politically in one direction. To the extent that an FBI operating without clear guidance and rigorous process can be weaponized to serve partisan political interests, the weapons are available to be turned on different interests at different times. Moreover, even where systemic breakdown can fairly be attributed to human error and flawed judgment, not to political machinations, this explanation stands little chance of being heard clearly or accepted widely in the heat of partisan conflict. One side or the other will find in this kind of breakdown the basis for charging a political motive or manipulation. The overall effect of these controversies has been to call into question the viability of the grand bargain, at least on its current terms, especially as it concerns FBI action related to politicians and political campaigns. Horowitz’s reports provide numerous fine-grained and technical criticisms, and literally dozens of proposals for reform, to enhance FBI process, credibility and legitimacy in this context. They all deserve attention. But based on his insights and other factors, we think that three areas warrant special consideration.

First is the serious problem of inadequate guidance to the FBI for opening and conducting investigations against politicians or campaigns, especially during election season. The FBI has two guidebooks—the Attorney General Guidelines, and the Domestic Investigations and Operations Guide (DIOG)—to regulate the Bureau’s investigative and intelligence-collection activities. Such guidance is vital to FBI legitimacy, especially when it investigates a politician or campaign. Well-designed guidance can establish a process to ensure that controversial steps are properly vetted in ways that minimize mistakes or disproportionate action. This, in turn, can help the FBI avoid controversy later, either because it declined to take unnecessarily controversial investigatory steps, or because it took those steps but can point to clear guidance for legitimation. But the last three years have shown that the current guidance is not well designed for investigations related to political campaigns.

As Horowitz noted, the threshold for opening an FBI investigation is “low.” To open a “full investigation” like the one against Trump campaign officials—which allows the FBI to use all its prodigious surveillance and intelligence-gathering techniques—the FBI need only satisfy two requirements. First, it must have an “authorized purpose” (such as detecting a federal crime or threat to national security). And second, it must have an “articulable factual basis” that “reasonably indicates” that a federal crime or threat to national security “may have occurred” or “may occur,” and that the investigation may obtain relevant information. These relatively permissive criteria give officials enormous leeway in opening an investigation based merely on the right type of factual allegations. And there is only one additional rule when the investigation involves a political candidate or member of a political organization: The FBI agent considering such a step must consult up the FBI chain of command to various degrees depending on the type of assessment or investigation in issue.

Horowitz’s latest report expressed surprise about deficiencies in the DIOG guidance in the context of opening investigations related to political campaigns. He proposed that the FBI establish procedures that require not just notice to a senior FBI official, but also notice outside the Bureau to a senior DOJ official, such as the Deputy Attorney General, “for case openings that implicate core First Amendment activity.”  Such elevated notice at the outset of such a sensitive investigation is a good idea because it brings into the loop a Justice Department official who has been subject to Senate confirmation and is directly subject to congressional oversight, and thus politically accountable.  Such high-level notice occurs in other critical circumstances, such as sensitive undercover operations.  A senior Senate-confirmed Justice Department official will also likely take a broader view of the matter than the Bureau and can, as Horowitz noted in his hearing, “consider the potential constitutional and prudential implications in advance of these activities.” In the event that such an official fails to do so, or makes the attempt but exercises poor judgment, he or she is the one who should answer for this to the Congress and public.

We would go further and propose not just better notice rules up the chain of command, but also concrete guidance to FBI officials about when they can or cannot open cases in politically sensitive areas. Horowitz noted that the FBI rulebook uses the same low threshold for opening sensitive cases connected to a political campaign, which implicate First Amendment activity and electoral integrity, as in ordinary non-sensitive cases. The FBI should develop a heightened threshold for opening such case to ensure that First Amendment activity is not unduly investigated. It is a fair concern that the new standard could invite risk aversion within the Bureau and leave undetected criminal or adverse national-security activity related to a campaign. This requires particularly close attention in an era likely to be marked by increased activity to illicitly influence our political process. But given the very large costs of the investigations in the last three years, these risks seem acceptable and can be mitigated if the heightened standard is carefully crafted.

We would also propose a heightened standard, and mandatory notice to the Justice Department, before the FBI opens a counterintelligence investigation on the president, as it did in May 2017. Such investigations focus on threats to national security from foreign intelligence agencies. The FBI is authorized to open such investigations but lacks specific guidance when the possible foreign asset is the president. The FBI appears to have concluded that Trump posed a national-security threat, and warranted counterintelligence scrutiny, because he was harming the FBI’s Russia investigation. But the president is not like other individuals who might pose a threat to national security, since he is constitutionally empowered to determine the national-security interests of the United States and to conduct its foreign policy, which includes the authority to change foreign policy on a dime.

We are not saying that the FBI should be barred from investigating a president who appears to be a Manchurian candidate, but the situation requires special guidance. The lines between a Manchurian candidate, a president engaged in quid pro quo foreign policy bargaining that is possibly corrupt, and the very large discretionary control that presidents have to conduct U.S. foreign policy, are not always easy to discern. The decision to open a counterintelligence investigation of the president is so consequential for the nation (and the FBI), and so politically fraught, that it should not be made without much clearer guidance. It also should not be made by the FBI alone.  FBI leadership wisely realized this truth, even without specific guidance, as it quickly briefed the Acting Attorney General and relevant congressional leaders. Such briefings should be mandatory—both for the FBI’s sake, and to ensure that Justice Department leaders do not eschew their responsibilities.

Horowitz additionally noted that the FBI had no policy on whether to give notice to campaigns, like Trump’s, that are subject to investigation. According to Horowitz, the discretionary call not to inform the Trump campaign was made by an assistant director of an FBI division, who concluded without any guidance that such notice might prevent the FBI from “finding the truth.” But this decision poses a huge legitimacy risk to the Bureau, since the failure to notify can later be construed, as evidence of political motivation. The FBI needs a clear policy and procedures on when and how it informs presidential campaigns about investigations.

Horowitz identified other important gaps in the standing FBI guidance about investigations related to political campaigns. As he set out in his report and his testimony to the Senate, the use of confidential human sources for “consensually monitoring” individuals affiliated with the Trump campaign, including an official who was not a subject of the investigation, was “permitted under Department and FBI policy because their use was not for the sole purpose of monitoring activities protected by the First Amendment.” However, he noted that the FBI rules allow agents to seek approval of this kind of intrusive investigative technique from only a first-level supervisor without any requirement that the FBI notify senior Justice Department officials. Horowitz recommends a requirement that there be “consultation, at a minimum.” The department should consider a rule requiring both notice and approval in cases involving politicians and campaigns.

Last week is not the first time that Horowitz has reported on gaps in Justice Department rules and policies in this context. In his 2018 report on the Clinton email investigation, he noted that departmental memoranda counseled that “politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges.” However, enforcement of this policy has rested on mere norms or practices against overt investigative steps within two months of a primary or general election, rather than something firmer and more concrete. Horowitz recommended that the department “consider” additional “guidance to agents and prosecutors concerning the taking of overt investigative steps, indictments, public announcements, or other actions that could impact an election.” The department must establish clear policies on these matters.

A second major problem identified by Horowitz concerns the 1978 Foreign Intelligence Surveillance Act (FISA) for obtaining judicial approval for electronic surveillance of foreign agents. This was the process under which the Justice Department got approval four times to surveil Carter Page. FISA is a core element of the grand bargain. The main innovation in FISA, and the main basis for its legitimation, is that federal judges review a proposed surveillance and approve it only if the government can show probable cause that the target of the surveillance is an “agent of a foreign power.” For decades the involvement of independent judges, combined with the supposedly rigorous procedures inside the Justice Department and FBI, were held up as reasons for confidence in the process.

The Achilles’ heel in the FISA process is that the judges are dependent on accurate and full factual representations by the Justice Department, which in turn is dependent on the FBI for a full accounting of the facts related to the surveillance. The system lacks an adversarial process; no one represents the interests of the target. Here is where Horowitz’s report is most troubling. He found 17significant inaccuracies, omissions, or errors related to the four applications to surveil Page, many (but not all) of which resulted in incomplete or misleading information being provided to the FISA court. All of the inaccuracies, omissions, or errors concerned matters that, if handled properly, would have tended to undermine the justification for surveilling Page.

Horowitz concluded that these matters were known inside the FBI but not conveyed to relevant officials in the Justice Department. He described these problems as “serious performance failures by the supervisory and non-supervisory [FBI] agents with responsibility over the FISA applications.” He expressed dismay that “so many basic and fundamental errors were made by [FBI agents] on one of the most sensitive FBI investigations that was briefed to the highest levels within the FBI, and that FBI officials expected would eventually be subjected to close scrutiny.” And he concluded that the episode “raised significant questions regarding the FBI chain of command's management and supervision of the FISA process.”

When the political dust settles, if not sooner, this aspect of the Horowitz Report will spark a crisis for the entire FISA process. The system rests on the accuracy and fullness of the FBI’s factual representations, including facts that are adverse to the surveillance. In the most serious of possible contexts, when the stakes were highest and everyone knew there would be close scrutiny after the fact, the process appears to broken down altogether—raising the question whether the system can be trusted in ordinary cases.

Horowitz recommends a number of reforms to ensure factual accuracy and completeness, and FBI Director Christopher Wray is taking these proposals very seriously.  But it is not clear that this problem can be fixed credibly within the executive branch alone. Congress needs to consider adding criminal or civil penalties for gross factual misrepresentations before the FISA court, akin to the penalties in FISA for electronic surveillance without court approval. It should also consider ways to introduce some sort of adversarial process, at least in the most sensitive contexts.

A third serious problem in the Justice Department and FBI revealed by the Horwitz reports is the erosion of clear lines and vigorous enforcement of political accountability. Horowitz’s report cites many failures to notify senior department officials of key investigative steps. Not all of these failures resulted from gaps in policy, inadequate compliance with reporting responsibilities, or poor judgment. Many resulted from intentional action by Department officials who concluded, despite guidance or norms to the contrary, that they should not notify senior officials of their activities.

Former Associate Deputy Attorney General Bruce Ohr had several discussions outside his formal area of responsibility with Christopher Steele, Fusion GPS’s Glenn Simpson and the FBI about alleged Russia-Trump campaign links. Unbeknownst to his Justice Department superiors, he met with the FBI at least 13 times to report what he learned and, sometimes, to convey documents. All but one of these meetings occurred after Steele had been terminated as a human source for the FBI due to his leaks to the press. (Horowitz criticized the FBI’s continuing reliance on this information through the indirect Ohr channel.)

Ohr told Horowitz that it was his “duty as a citizen” and a Department employee to provide the FBI with Steele's and Simpson's allegations concerning Russian connections to the Trump campaign. Ohr worked at the time for Deputy Attorney General Sally Yates, but he declined to tell her about these activities. He told Horowitz that he was concerned that Yates might direct him to stop. He thought it best to keep matters in the hands of the “career people.” Other career officials offered a different reason for concealing from senior leadership discussions about the investigation of former Trump campaign manager Paul Manafort. Horowitz reports that one career lawyer who worked with Ohr, Bruce Swartz, stated that his objective was to keep the Manafort investigation from being “politicized” and to protect “the Department from allegations that its investigation of Manafort was politically motivated.”

Both of these rationales for refusing to share information with senior department leadership—the avoidance of unwanted direction, and the defense against the appearance of “politicization”—constitute dangerous threats to the culture of democratic accountability in the Justice Department. Horowitz noted these officials “fundamentally misconstrued who is ultimately responsible and accountable for the Department’s work.” He added that “Department leaders cannot fulfill their management responsibilities, and be held accountable for the Department's actions, if subordinates intentionally withhold information from them in such circumstances.” Yates told Horowitz that there is not “a career Department of Justice and a political appointees' Department of Justice. It's all one DOJ.” And it is the senior leadership of the Department—appointed by the elected president and confirmed by elected Senators—that answers for the actions of the “one DOJ.”

Horowitz’s criticisms here call to mind his earlier criticism of former FBI Director James Comey in the report about the Clinton email investigation. Comey did not tell the leadership of the Department about his plans to issue his July 5, 2016 statement about the Clinton investigation, in order to avoid them having the chance to tell him not to do it. The inspector general concluded that Comey’s statement “was inconsistent with Department policy and violated long-standing Department practice,” and “usurped the authority of the Attorney General.” Comey acknowledged that his actions were unusual but defended them by saying that—in light of his concern that President Obama and Lynch may have appeared to prejudge the Clinton case—they were the “best available alternative to protect and preserve the Department of Justice’s and the FBI’s reservoir of trust with the American people,” and the best route to protect the department against the appearance of a “political influence.”

Comey argued, as doubtless others caught up in the just-concluded inspector general investigation believed, that this system of reporting and accountability might be appropriate in normal times but not in extraordinary circumstances—such as the Clinton email investigation, which Comey described as a “500-year flood.” Comey was troubled that some of his superiors would be seen to have prejudged the case, and we have little doubt that this good-faith concern about the appearance of politicization shaped many of his choices. He also knew that his actions, motivated (as he put it) by his desire “to protect and preserve the Department of Justice’s and the FBI’s reservoir of trust with the American people,” would cause him reputational harm.

But the carefully structured system of accountability for DOJ decision-making leaves the controversial decisions the department invariably makes in the hands of officials who can best be held politically responsible for the decision, as it should. Such officials cannot exercise their responsibilities, and the accountability system cannot work, if they are kept in the dark on important matters relevant to the department’s decision. One of the major lessons of the last three years is that the demand to follow protocol and process, and the need for political accountability, is most urgent in extraordinary circumstances. Comey, Ohr, and others who failed to follow normal protocol in a highly sensitive and controversial context did not succeed in enhancing public confidence in a depoliticized law-enforcement process. To the contrary, by cutting out their political superiors, they contributed to the perception of politicization.

Some will argue that the errors and misjudgments identified by the inspector general related to the 2016 investigations can only be evaluated against the alternative: the risk that senior political officials, when fully informed and engaged, will act in cases related to candidates or elections in ways that undermine public confidence—for example, by protecting members of their party, or by taking justifiable steps that seem political because they favor an incumbent political official. This is a danger, but it is one best addressed by focusing responsibility on accountable actors who can be exposed to the range of political sanctions, and it is not a danger that can be solved by their subordinates breaking norms in the name of depoliticized decision making.

Horowitz proposes to address these problems through policies that would make reporting and consulting up the Justice Department chain of command explicit duties. The reforms aim to ensure that senior officials are properly informed and able to take responsibility for subordinates. As the Inspector General reports emphasize, clear guidance and an improved process can discipline decision-making at all levels, and are the most effective defenses against partisan political behavior, or the suspicion of it, in investigations of core First Amendment activity.

As we argue in a forthcoming book, the Trump presidency has exposed a range of problems in the institution of the presidency that demand reform. Most of the reforms concern this president’s behavior in various areas (financial disclosure, conflict of interest, press relations, and the like) or his relationship with the Justice Department (including the rules to ensure the Justice Department’s independence, and a properly functioning special counsel).  

But not all of the needed reforms concern gaps in law, norms, and accountability revealed by Trump’s aberrant behavior.  Horowitz’s four reports on the 2016 election make clear that reform is urgently needed in how the FBI and the Justice Department open and conduct investigations related to politicians and political campaigns. There are many destructive pressures today on the legitimacy of the American electoral process, including an explosive social-media environment, a splintered polity, and foreign-influence operations. Our democracy cannot afford the added delegitimating burden of botched investigations related to elections that inevitably give rise to suspicions or charges of political manipulation.