The Trumping of the FBI

The president and his allies don’t want to protect the bureau’s political independence—they want to subvert it.

President Trump and his allies are claiming that the memo released by House Intelligence Committee Chair Devin Nunes proves that the federal investigation into Russian interference in the 2016 election is a partisan witch hunt motivated by a fraudulent document produced by an anti-Trump source. Trump, who tweeted that he was “vindicated” by the memo, also shared a few lines from a Wall Street Journal editorial that argued “the FBI became a tool of anti-Trump political actors,” that it was “used to influence the 2016 election and its aftermath,” and that the behavior in the memo is “unacceptable in a democracy and ought to alarm anyone who wants the FBI to be a nonpartisan enforcer of the law.”

That version of events might seem confusing to anyone who read the text of the Nunes memo or who lived through the events of the 2016 election. Although both candidates were under investigation when the ballots were cast, then-FBI director James Comey defied Justice Department guidelines against taking “overt investigative steps” close to an election by holding a press conference excoriating Democratic nominee Hillary Clinton while declining to seek charges against her, and later announced, days before the election itself, that the FBI was reopening its inquiry into her handling of private information as secretary of state.

By contrast, in accordance with Justice Department rules, the FBI kept its investigation into the Trump campaign—which began in July—under wraps, including its surveillance of former Trump campaign adviser Carter Page, on whom the Nunes memo largely focuses. As a result, the FBI’s only public influence on the election worked to Trump’s advantage.

The history of the FBI shows how dangerous a politicized bureau can be. For decades under J. Edgar Hoover, the bureau treated the Constitution as a mere list of suggestions, tapping phones, breaking into homes, and suppressing political activists, particularly non-violent left-wing and civil-rights activists, because Hoover regarded them as domestic enemies. But the long list of political foes that Trump and his allies have said should be prosecuted suggests that they seek not to protect the bureau’s independence, but to turn it into a weapon to wield against their opposition. They are not opposed to politicizing law enforcement; they are demanding it be politicized.

The Nunes memo provides an illustrative example. The document focuses largely on a dossier compiled by the former British intelligence agent Christopher Steele on behalf of the firm Fusion GPS, whose account for opposition research on Trump’s Russia ties, first started by anti-Trump Republicans, had been taken on by the Democratic National Committee. The memo argues that the FBI’s application to the Foreign Intelligence Surveillance Court for an order to spy on Page, which cited the dossier, did not “disclose or reference the role of the DNC, Clinton campaign, or any party/campaign in funding Steele's efforts, even though the political origins of the Steele dossier were then known to senior and FBI officials.”

Nunes has since acknowledged publicly that the FBI did indeed include a footnote referencing Steele’s political leanings, but still maintains that the FBI abused its power by including information from a biased source—a claim legal experts say has little basis. Yet  foreign-intelligence gathering often involves using information from sources with private or political agendas. FBI informants can themselves be unsavory characters: gangsters, terrorists, Nazis. From a legal standpoint, the question is what other information was in the application, and whether the underlying information cited in the dossier was accurate, and the Nunes memo makes no attempt to argue that it wasn’t. And given that the Nunes memo is itself a partisan document, written by Republicans in possible consultation with the White House and released by the committee on a party-line vote, it cannot be the case that Republicans believe that partisan sources cannot provide reliable information.

The Nunes memo, as my colleague David Graham wrote last week, largely refutes its own premise by acknowledging at the end of its four pages that the Russia investigation began with a Trump foreign-policy adviser, George Papadopoulos, seeking derogatory information on Clinton from Russian sources, months before the Page order was sought. But the fight over the Nunes memo also reveals the fundamental asymmetry of the current conflict over the FBI and its role in a democracy. Nunes and the president’s allies aren’t arguing that the FISA-warrant process is structurally flawed and that the court should have a more adversarial process, as civil libertarians have proposed. They aren’t calling for citizens subject to such surveillance to be able to challenge such warrants in court. They don’t want more restrictions on the ability of the government to eavesdrop on Americans communications without a warrant—in fact Nunes himself supported expanding such powers in January.

The president’s own complaint isn’t that the FBI has failed to be a “nonpartisan enforcer of the law,” but rather, that the FBI is not partisan enough. Trump has complained about the bureau’s investigation of his own conduct, while both he and other Republicans have urged that a roster of his political opponents be prosecuted, including Hillary Clinton, James Comey, Steele, and the ranking member on the House Intelligence Committee, Adam Schiff, whom the president accused of “illegally” leaking confidential information.

It’s a view that requires casting Republicans like Robert Mueller, President George W. Bush’s choice to head the FBI; James Comey, a Bush-era Justice Department official nominated by President Obama to succeed Mueller; Andrew McCabe, the deputy FBI director who voted in the 2016 Republican Primary; Republican-appointed Chief Justice John Roberts, who appoints federal judges to the FISA court; and Rod Rosenstein, Trump’s own appointee to be deputy attorney general, as agents of some fantastical liberal-Democrat deep-state conspiracy to bring down the president. The mere fact that the key decision-makers in the Russia inquiry are all Republicans is insufficient—Trump faults them for not being as loyal to the president as his closest aides, confidantes, and supporters. He regards personal loyalty to himself as indistinguishable from loyalty to the country.

Regardless of the efforts or intentions of the leadership of the FBI, the Republican attempt to turn the bureau into a tool of partisan warfare appears to be working. Republicans, insulated from the potential backlash by the very “law and order” voters who put them in office, are willing to attack the FBI publicly as a covert political tool of Democrats in a way that the opposition party simply is not.

That asymmetry means that the FBI often responds to Republican or conservative criticism differently than it responds to criticism from Democrats. As I wrote in May, the FBI’s attempts to shield its reputation for political independence from conservative criticism has resulted in its actual political independence being compromised. Comey’s July 2016 press conference excoriating Clinton, and his subsequent public letter announcing the investigation had been reopened, were attempts to pre-empt conservative criticism that the FBI was biased. Several FBI officials have been demoted or pushed out of the bureau because their actions or views might be taken as biased by Trump officials or their allies. Attorney General Jeff Sessions, whose Justice Department oversees the FBI, has been largely silent in the face of the conservative attacks, despite his frequent jeremiads against alleged liberal demonization of law enforcement. Behind the scenes, rather than defend the bureau’s independence, he has urged Trump’s hand-picked FBI Director Chris Wray to acquiesce to the president’s public denunciations of FBI officials.

Matt Ford has written that in this climate, Democrats “are right to defend the FBI” and its independence. As he argues, though, it’s not the inherent virtue of the bureau or its agents that needs defending, it’s the idea that the bureau’s vast powers should not be used for partisan purposes. Given the bureau’s record under presidents of both parties, that requires both aggressive oversight to guard against abuses and a commitment to maintaining the bureau’s independence from partisan pressure—not reflexive support, nor critiques of partisan bias that only serve to reinforce it.

Republicans have recognized that the FBI is vulnerable—that for the bureau to maintain its reputation as apolitical, it has to make concessions to the right lest it incur the wrath of the conservative base and its conspiratorial imagination. And that means that whether its agents want to or not, whether they intend to or not, the FBI is slowly becoming the tool of partisan warfare that its defenders claim it must never be. Which is just how the president who ran a campaign promising to imprison his political rival wants it.