It may seem that the FBI is on the mend. The inspector general’s December report, identifying numerous failings, made nine recommendations the FBI has embraced. Director Christopher Wray has gone further by laying out 40 changes that he plans to implement at the bureau.
As positive as these developments are, they fall short of the fundamental fix that is needed.
Culture is the issue. The OIG report damningly documented a pattern of deliberate omissions, misstatements, and outright falsifications in material that was presented to the FISA court by three different investigative teams. This widespread behavior describes a culture, not just the work of a “few bad apples.” In what is close to an understatement, the IG concluded that this “fell short of what is rightfully expected from a premier law enforcement agency.” That may be because they were acting like an intelligence agency, not a law enforcement agency.
In the wake of the 9/11 attacks, former FBI Director Robert Mueller set out to make the FBI into an intelligence organization. The FBI’s culture had previously been rooted in law enforcement. A law-enforcement agency deals in facts, which may have to be sworn to in court. An intelligence agency deals in estimates or best guesses. Guesses are not allowed in court. Intelligence agencies use deception routinely. Bending a rule, or shading the truth, comes naturally to the intelligence culture. These are the very behaviors the IG report describes.
Many of us found it disappointing when Wray stressed that “the Inspector General found that in this particular instance, the investigation began with appropriate predication and authorization.” Actually, that is not much to be proud about. The IG repeatedly noted the bar for opening a counterintelligence investigation is very low. It was the IG’s judgement that the referral by a friendly foreign government — relaying the conversation of George Papadopoulos about Russian “dirt” on Hillary Clinton — met that low standard.
One conversation, relating a secondhand rumor, should never be enough to justify opening a counterintelligence investigation of any U.S. person, much less a presidential campaign. That is the essence of the concern held by many of us, who served in and loved the FBI. One off-hand conversation is not sufficient predicate to initiate a full counterintelligence investigation. It should not be, even if the IG says it met that very low bar. FBI management in the past would have said to the investigative team “we need more.”
Wray could begin to fix the culture by stressing that going forward the FBI will need more factual predicate than the bare minimum to initiate a counterintelligence investigation of any American. The theses — that there was predicate to open the Russian collusion investigation — appears to be where Wray and Attorney General William Barr part company.
During Barr’s May 2019 testimony to the Senate Judiciary Committee, in which he reported the Mueller report found no collusion between Trump’s campaign and Russia, the dialogue centered on the question of how we arrived here. Barr’s interlocutor, Republican Sen. Marsha Blackburn of Tennessee, concluded that the explanation was an “unhealthy work culture” at bureau headquarters.
To change culture you must first recognize that there is a problem. Wray has declined to do this by taking shelter in the IG’s finding that the case met the low standard required.
Investigating a presidential campaign, even if the IG found it permissible, is simply not the right thing to do. Something does not become right just because it is legal. Targeting a U.S. citizen, much less a presidential campaign, is an indication of a bureau drifting away from its law enforcement moorings.
The way forward is for Wray, with strong backing and support from Barr, to bend the bureau away from an intelligence culture and back to a law enforcement culture rooted in the Constitution. It will be a difficult task. But to restore the FBI’s credibility, it needs to be done.
Tom Baker (@BakeAssociates) served as an FBI special agent for 33 years. He served as the legal attaché at the American Embassy in Canberra, Australia, and in Paris, France.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.
