Don't Let the FBI Decide the Election
The question of who becomes the president of the United States should be answered by voters, not federal agents.
The Watergate Scandal was a high point of American journalism. Two dedicated young reporters from The Washington Post, Bob Woodward and Carl Bernstein, brought down President Richard Nixon for his role in the coverup of the 1972 attempted break in of the Democratic Party headquarters by Republican operatives.
But the Watergate scandal also exemplifies another Washington tradition: cutthroat bureaucratic infighting.
One of Woodward’s key sources for Watergate stories was W. Mark Felt, a.k.a Deep Throat, the number two official at the Federal Bureau of Investigation who had been passed over for the top role after J. Edgar Hoover’s death. The job went instead to a hapless Nixon crony, L. Patrick Gray III, who later resigned after admitting to destroying documents related to the break-in.
Many in the Bureau took Nixon’s decision personally, according to Timothy Weiner’s Enemies: A History of the FBI, objecting that “Felt was Hoover’s rightful heir.”
“It hurt all of us deeply,” Charles Bolz, the former chief of the FBI’s accounting and fraud division told Weiner. “Felt was the one that would have been the Director’s first pick. But the Director died. And Mark Felt should have moved up right there and then. And that’s what got him into the act. He was going to find out what was going on in there. And, boy, he really did.”
The Watergate Scandal is the story of political corruption at the highest levels of the American government, and of the journalistic crusade that brought it to light. But it’s also a story of bureaucratic revenge, of what happens when the most powerful political leaders in the country antagonize officials in its premiere domestic intelligence agency. The latter part of the story is typically elided in retellings, precisely because of its disturbing implication that Nixon’s corrupt presidency might have survived had he read the politics of the FBI better.
FBI Director James Comey’s decision to reveal fresh details of the Bureau’s investigation into Hillary Clinton’s private email server while secretary of state, and the subsequent leaks from Bureau sources casting suspicion on Clinton and defending Republican nominee Donald Trump from allegations of Russian influence, do more than threaten the Bureau’s reputation. They threaten American democracy as much as any of Trump’s authoritarian proposals.
Felt has gone down in history as an idealist lawman radicalized by Nixon’s lawlessness rather than a disgruntled federal official, but it’s possible he was simply both. Felt joined the FBI in 1942, and so was present for the Bureau’s worst illegal excesses––the warrantless break-ins, wiretaps and spying, the surveillance of the president’s political enemies––under Hoover, its longtime director. None of this bothered Felt––he considered Hoover a hero, even defending the FBI Director’s decision to spy on and attempt to blackmail Martin Luther King Jr. with the details of King’s extramarital affairs.
It’s no coincidence that several of the men who engineered the break-in were former Hoover-era FBI agents––they had the necessary experience in black bag jobs. “You are either going to have an FBI that tries to stop violence before it happens or you are not,” Felt told Face the Nation in 1976, defending his authorization of warrantless break-ins against the Weather Underground. “I don’t say it’s not legal, I say it’s extra-legal,” he explained.
Two years later, Felt and his deputy Ed Miller were under indictment for their involvement in “extra-legal” actions, swept up the post-Watergate and post-Vietnam backlash against unrestrained executive power. He was later pardoned, along with the Watergate burglars, by President Ronald Reagan, who argued that “America was at war in 1972.” Although the Vietnam War would rage until 1975, as Weiner notes, “the FBI’s targets were not agents of foreign powers.” The pardon was warranted simply on the grounds that Felt had described in 1976: The FBI was trying to protect the country, and so anything it did was justified.
The backlash against Nixon’s lawlessness helped lead to new and crucial restraints on the powers of the federal agencies charged with national security. But in recent years, technological advances, political shifts and the popular reaction to transnational Islamist terrorism have rendered many of those restraints obsolete. On Friday, Comey announced that the the Bureau was reviewing whether emails related to the investigation into Hillary Clinton’s email server might be preserved on the computer belonging to the former husband of a Clinton aide. That move, coming less than two weeks before the presidential election, suggests that some at the FBI once again feel untouchable.
There are several reasons why law enforcement agencies should not make sensitive political disclosures in close proximity to an election. The first is that investigations are not convictions, and such revelations necessarily create a presumption of guilt around the target of the disclosures. Another is that the FBI is given immense power to scrutinize the lives of American citizens, but that power is meant to help punish or prevent crimes, not to empower the Bureau to pursue its own political interests. Otherwise intelligence services would become a constituency elevated above the citizenry itself––with politicians currying their favor in order to ensure those agencies used their powers to their benefit and against their opponents. FBI agents are granted extraordinary authority to defend the Constitution, not to use investigations to manipulate American politics as they see fit.
Yet it should be no surprise that some at the FBI feel empowered to do just that. Fifteen years of war have eroded America’s civic culture, its incomplete commitment to religious and racial pluralism, and its concern for civil liberties. The Central Intelligence Agency tortured terrorism suspects, and not one official of any rank was held accountable, and not one court decision has determined their behavior was illegal. When the Senate investigated its actions, the CIA spied on Senate aides and then lied about doing so. The National Security Agency was revealed to have engaged in a massive warrantless spying operation that included surveillance on American citizens. But changes to NSA surveillance powers have been meager. Unarmed black men are killed in disproportionate numbers by police officers who are shielded by a legal standard that exonerates police officers who say they feared for their lives, no matter how absurd the circumstances.
All of these decisions are the result of effective political maneuvering by these entities themselves. It is common for Americans to treat law-enforcement officials as apolitical, the reality is that they represent political entities with institutional interests that sometimes clash with those of the citizenry they are empowered to serve.
Normal politics however, are distorted by the currents of wartime nationalism, which can make any criticism of the excesses of security officials seem disloyal if not seditious. National-security officials themselves, from the nation’s top spies to the most modest beat cop, warn that any effort to hold authorities accountable will lead to death and chaos––and they frequently retain popular support in doing so. Torture, warrantless spying, and murder might be against the law, but America’s security services are often above the law. It’s the only way they can protect you.
It is hardly inconceivable then, that some at the FBI would feel unconstrained by the Justice Department’s guidelines barring sensitive political disclosures in close proximity to an election––it is the logic of wartime nationalism that institutions charged with protecting the country disregard limitations on their power in the name of the national interest.
On Friday, Comey wrote in a letter to Congress that “In connection with an unrelated case, the FBI has learned of the existence of emails that appear to be pertinent to the investigation.” Comey added that he was writing because “the investigative team briefed me on this yesterday, and I agreed that the FBI should take appropriate investigative steps designed to allow investigators to review these emails to determine whether they contain classified information, as well as to assess their importance to our investigation.”
The emails reportedly came from the laptop of Anthony Weiner, the former congressman and husband of Clinton aide Huma Abedin. Though it’s too early to be certain, none of the emails, according to multiple reports, come from Clinton herself. Nevertheless, Republicans quickly implied that a potential indictment of Clinton was in the cards, despite Comey’s own decision months ago that it was “not a close call” that Clinton’s handling of classified information did not merit criminal prosecution.
Pundits have speculated about whether Comey wrote his letter out of a sense of responsibility to update Congress because he had testified that the inquiry had concluded, because he is a partisan Republican who wants to see Donald Trump in the White House, or because he was trying to preempt the information from being leaked by a rogue FBI agent. But irrespective of what motivated Comey himself to act, it seems clear that key officials at the Bureau no longer feel that the rules against politicized disclosures apply to them.
Subsequent leaks from to the Wall Street Journal from agents frustrated by what they see as their superiors’ unwillingness to pursue criminal investigations into the Clinton Foundation (predicated, according to the New York Times, on an anti-Clinton book bankrolled by an organization co-founded by Trump campaign manager Steve Bannon) and Virginia Governor Terry McAuliffe, a longtime Clinton ally, make it clear that there are officials at the Bureau who are not simply unopposed to casting suspicion on a presidential candidate days before an election, but are eager to do so. Not one of these probes has resulted in criminal charges, and it seems possible, even likely, that none of them will.
Since then, U.S. officials presumably frustrated by Comey’s actions have leaked to the press that Comey himself opposed revealing that the U.S. government believed Russia to be responsible for hacks targeting the Democratic Party because it was too close to the election and that the FBI has launched an inquiry into former Trump campaign manager Paul Manafort’s foreign ties.
Conversely, after leaking to the WSJ about investigations into Clinton and her allies, FBI officials made the remarkable decision to tell the New York Times that the suspected Russian hacks were meant to “disrupt” the election, not help Trump, thereby neutralizing a common Democratic talking point against the Republican nominee. (It’s one thing to confirm facts surrounding a questionable story about a Trump server communicating with a Russian bank, it’s another to use one’s official status to blunt political criticism of the nominee’s foreign policy).
The point is not that some of these leaks are good and some of them are bad. The point is not that Clinton is innocent or not innocent, or that Trump is pro-Russian or anti-Russian. The point is that a presidential election should not depend on the ability of candidates to successfully intimidate or cultivate favor among American national-security agencies.
This outcome is neither surprising nor unforeseeable. In Federalist Number 8, Alexander Hamilton’s argument against having a standing Army, he notes that in nations beset by constant warfare, “the continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. The military state becomes elevated above the civil.”
Furthermore, Hamilton writes, “The inhabitants of territories, often the theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors.”
Hamilton could not have foreseen the expansion of the national-security bureaucracy, both military and civilian, but he clearly saw its dangers. He was not evaluating the patriotism, or bravery, or commitment of those soldiers to their societies or to the rule of law. Hamilton saw the emergence of a caste system as the inevitable consequences of societies forever at war, one that could not be avoided by the noble intentions of those committed to defending those societies. The Bureau officials casting suspicion on Clinton days before an election doubtless feel like they are doing their duty by bringing their concerns directly to the public––but the point of the Justice Department rule on not interfering with elections is that it’s not their job to make those decisions.
What makes this situation all the more perilous is that one of the candidates who will try to prevail on November 8, Donald Trump has vowed to order U.S. armed forces to commit war crimes, to deport millions from the country at gunpoint, to bar members of a religious group from entering the U.S., and called to an end to criticism of police who kill unarmed civilians. He has also pledged to imprison the opposing candidate, refused to commit to honoring the election results if he loses, and praised despots who engage in violent political repression of their opponents, all while running on “law and order.” Despite these things, or more terrifying, because of them, he boasts the endorsement of unions representing police and immigration enforcement officers.
Trump’s campaign has not been devoid of criticism of law enforcement––far from it. Until last Friday, Trump was apoplectic over the FBI’s decision not to indict Clinton over her emails, charging the Bureau with corruption. If Trump wins on November 8, his lawless philosophy, under which the only failure of law enforcement that cannot be forgiven is the failure to crush his political enemies, and acts of state force can be justified on the basis of ethnic or religious background, also wins.
Clinton may prevail, despite the Bureau’s disclosures, official and otherwise. But absent the kind of overwhelming popular backlash that followed the Watergate scandal, the sort of tough, comprehensive evaluation of the agencies charged with public safety that they so clearly require will not be forthcoming. The last spate of investigations and reforms came when the Vietnam War was winding down. As long as the War on Terror continues, by any name, the nationalism it inspires will find expression in authoritarian impulses that threaten the constitutional democracy agencies like the FBI are sworn to preserve.