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.
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 assure the American people that the FBI (and other intelligence agencies) did not in fact use its powers for political ends, but also to ensure that it did not appear to use its powers for these ends.
The FBI has taken a large hit in its credibility over the past four years, due in large part to Trump’s unprecedented, reckless, and routinely baseless attacks on it. But the bureau has also hurt itself through 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.