FBI remains above the rule of law and beyond the reach democratic accountability

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.

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. The FBI can use a false allegation of a target acting as a foreign agent to spy on political opponents.

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.

Increasing Transparency
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.

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.

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.

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.

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