FERBRACHE: You May Have Missed A Startling Part Of Wray’s Testimony On Backdoor Gun Control

Mark Ferbrache Contributor
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FBI Director Chris Wray was again House Republicans‘ favorite punching bag. With daily revelations from House Oversight and Accountability Chairman James Comer (R-KY) and Charles Grassley (R-IA) in the Senate virtually cementing Hunter Biden’s role as a major influence peddler to foreign countries, including China, Republicans want answers from the FBI as evidence on Hunter seems to implicate the President.

Wray’s interrogators went after him on a smorgasbord of allegations of the FBI violating its own policies and procedures, i.e., the Durham Report, and egregious Constitutional violations of citizens’ rights. Wray’s evasiveness enraged Republicans seeking answers to, among other concerns:

Whether the FBI used undercover agents or directed sources to, maybe enthusiastically, participate in the Jan. 6 riot, and what is the Bureau’s alleged relationship with the ubiquitous Ray Epps? In another curiously timed development, Epp’s attorney indicated the government now intends to charge his client relative to the Jan. 6 event.

What is the status of the suspected pipe bomber who left devices at both the RNC and DNC on Jan. 6? A whistleblower reported that investigators identified a car associated with a suspect but did not pursue the lead.

And don’t even get me started on the FBI and Justice Department’s handling (or not) of the infamous FD-1023, or Wray’s absurd claim that the Bureau did not engage in censorship with social media but simply offered suggestions, utterly belied by Judge Terry Doughty’s cogent opinion in Missouri v. Biden.

But to me, the most startling admission by the FBI Director were his responses to the FBI’s collection of transaction records from US financial institutions. During Wray’s appearance, Kentucky Republican Thomas Massie advised Wray,“George Hill, former FBI supervisory intelligence analyst in the Boston field office, told us that the Bank of America, with no legal process, gave to the FBI gun purchase records with no geographical boundaries for anybody that was a Bank of America customer. Is that true?”

“A number of business community partners all the time, including financial institutions, share information with us about possible criminal activity, and my understanding is that that’s fully lawful”, Wray responded. Wow.

So, yes, there is an established process for private financial institutions to provide the government, such as regulators and law enforcement, customer records under narrowly crafted provisions, one being indicia of criminal activity. The operative term here is “criminal activity.”

Pursuant to the Department of Treasury’s Bank Secrecy Act, financial institutions and banks are required to make formal referrals to the Financial Crimes Enforcement Network (FinCEN), when, after conducting due diligence, the bank believes that a crime such as fraud or money launder may have occurred at their institution. These routine referrals are called SARs or Suspicious Activity Reports.

You may have heard about SARs earlier this year in connection to the Biden family’s financial escapades of receiving millions of dollars from foreign entities, triggering the production of about 150 SARs.

The FinCEN website states, “Under the system, FinCEN is designated as the single filing point for suspicious activity reports and is responsible for distributing the information within the government.”

According to the FBI, “FinCEN, which maintains and oversees BSA [Bank Secrecy Act] reporting, has also implemented strict controls governing access to such information to ensure it is not misused and remains confidential.”

But the circumstances in this instance with Bank of America’s alleged behavior are completely different, and troubling.  Whistleblower George Hill told congressional investigators that the FBI’s D.C. field office leaned on other field offices to predicate investigations on US citizens based on nothing more than the transactions records Bank of America provided to the FBI. Further, Bank of America highlighted customer transactions of apparently lawful firearm purchases by Americans, Hill said.

There are all kinds of wrong with this. First, Bank of America’s alleged conduct – the voluntary provision of confidential customer information – would seem to be a violation of their obligation to their customers’ entitlement to privacy.

The 1978 Right to Financial Privacy Act“protects the confidentiality of personal financial records by creating a statutory Fourth Amendment protection for bank records… Generally, the RFPA requires that federal government agencies provide individuals with a notice and an opportunity to object before a bank or other specified institution can disclose personal financial information to a federal government agency, often for law enforcement purposes.” 

There is nothing to indicate that Bank of America ’s customers would have consented or been notified that their transaction records were provided to the FBI.

Second, for the FBI to accept this information without the notification or consent of the customer would be tantamount to an unauthorized collection or illegal search. If the whistleblower’s testimony is accurate, Bank of America and the FBI simply did an end run around the Bank Secrecy Acts reporting requirements and violated the RFPAs Fourth Amendment protections.

Finally, during my time in the FBI, the free exercise of the Second Amendment, to purchase and own a firearm, was no justification to broadly collect, or even freely accept, private records as evidence of such, let alone predicate an FBI investigation devoid of any connection to criminal activity.

In fact, whistleblower George Hill said the D.C. FBI demanded that the Boston FBI open cases based on the Bank of America information. From the squad supervisor to the special agent in charge (SAC), the Boston office rightly refused.

Wray is in an impossible position. He leads an organization that has lost most Americans’ trust and credibility. He claims to have instituted corrective measures internally to right the wrongs that occurred before his tenure. But problems with the Bureau’s stewardship continue to surface during Wray’s tenure and ultimately, he is accountable for them.

Yet, he must defend an organization and its people that remain effective on many other fronts, such as fighting crime, supporting local law enforcement and protecting national security from relentless foreign adversaries. FBI successes happen every day, mostly beyond the beltway bubble in the flyover territories.

But he is trying to defend the indefensible. The deluge of information turned up by Comer and Grassley, a growing number of credible whistleblower disclosures, the Twitter files, various IG reports and reporting by genuine investigative journalists, paint a stark picture of ongoing malfeasance and misconduct within, not only the FBI and DOJ, but throughout the institutions of the Biden administration.

Simply saying that FBI policy prohibits him from discussing an “ongoing investigation,” or other manner of official deflections, is not going to cut it for Wray.  To many Americans, there are just too many fumbles and dropped balls by the FBI and Justice Department. Maybe it’s time to make a trade.

Mark D. Ferbrache served as an FBI special agent for 27 years specializing in white-collar criminal investigations. He later worked in the bureau’s National Security Division and CIA’s Counterterrorism Center, and held diplomatic assignments in Prague, London and Bucharest, as well as field office assignments in Seattle, New York and the FBI Headquarters in Washington. He is currently employed as a contractor in the U.S. intelligence community.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.