In the Watergate scandal that ultimately forced him to resign from office, President Nixon tried to use the CIA and FBI to target his political enemies and to carry out dirty tricks to help him win re-election in 1972.
In another example of an abuse of power, long-serving FBI Director J. Edgar Hoover – who held the post from 1924 to 1972 – used the bureau to gather dirt on elected officials, political candidates and other public figures and exert influence over them.
Today we’ve all heard accusations that President Trump is trying to politicize the Justice Department and the FBI so he can use them against his opponents and critics – a 21st century version of Nixon’s enemies list.
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But in the massive news coverage of all sorts of unproven allegations against President Trump – many arising out of the investigation by Special Counsel Robert Mueller of alleged cooperation between the Trump presidential campaign and Russia – the FBI’s pursuit of political targets has received far too little notice.
After Watergate and the Hoover’s 48-year reign at the FBI, leaders of law enforcement agencies should have learned some important lessons: Don’t be used as the servants of people in power. Stay out of politics. And don’t investigate political campaigns, because it’s not your job to influence the outcome of elections.
Dictatorships politicize their law enforcement agencies. In America, we want the FBI and police to be nonpartisan, and we expect them to give equal treatment to people of all political parties and persuasions.
Unfortunately, FBI Director James Comey – who was appointed by President Obama in 2013 and justifiably fired by President Trump in 2017 – failed to do his duty and live up to the standard of nonpartisan law enforcement.
Under Comey’s leadership, the FBI plunged into the thicket of the 2016 presidential campaign on the side of Obama and Democratic presidential nominee Hillary Clinton – and in opposition to candidate Donald Trump.
Comey’s extreme bias against Trump and his team was evidenced by then-FBI director’s determination to find something – anything – to pin on retired Army Lt. Gen. Michael Flynn, a decorated combat veteran who served our nation in uniform for 33 years before becoming Trump’s national security adviser for a mere 24 days.
Comey began the attack on Flynn. Mueller picked it up after Trump fired Flynn and Comey. Mueller charged the retired general with lying to the FBI.
At Flynn’s sentencing hearing Tuesday, Mueller recommended no prison time for Flynn, who pleaded guilty to lying about his contacts with Russia’s ambassador to the U.S. regarding American sanctions on Russia and an upcoming U.N. vote on Israeli settlements.
Mueller’s willingness to recommend that Flynn receive a “get of jail free card” would seem to indicate that Flynn gave Mueller information the special counsel was looking for to go after his target-in-chief – President Trump.
But U.S. District Judge Emmet Sullivan refused to approve the lenient sentence, declared his “disdain” and “disgust” for Flynn, and shockingly wondered if Flynn could be charged with treason – statements the judge subsequently withdrew.
But the controversy surrounding these intemperate attacks by the judge obscures the importance that the Flynn plea plays in the larger story of the politicization of the Obama Justice Department.
Thanks to the leadership of Rep. Trey Gowdy, R-S.C., the House Judiciary Committee simultaneously brought these problems to light in its questioning of Comey in a hearing Monday.
Under Comey’s leadership, the FBI plunged into the thicket of the 2016 presidential campaign on the side of Obama and Democratic presidential nominee Hillary Clinton – and in opposition to candidate Donald Trump.
A transcript released of the closed-door hearing shows Comey confirmed that he evaded standard protocol – which would have required the FBI to work through the White House Counsel’s Office and Justice Department leadership – when he sent two FBI agents to question Flynn in the first days of the Trump administration.
Comey boasted that excluding Justice Department and White House lawyers from the questioning of Flynn is “something we, I, probably wouldn’t have done or maybe gotten away with in a more organized investigation, a more organized administration.”
FBI agents then subjected Flynn to careful questioning, even though they already had electronic intercepts of his conversations with Russian Ambassador to the U.S. Sergey Kislyak and his many contacts with foreign diplomats during the Trump presidential transition.
The FBI agents encouraged Flynn to sit down without White House lawyers present, did not reveal that he was the subject of a criminal investigation, and even came away thinking he did not intentionally lie to them.
Many observers have asked why Flynn would lie about a detail involving his discussions of sanctions with Russia’s ambassador. After all, it was his job as the incoming national security adviser to make contact with important foreign governments.
Flynn would also know, as a former head of the Defense Intelligence Agency, that the FBI regularly monitors the electronic communications of foreign diplomats.
But the overlooked question is this: Why did Comey and the FBI go to such extreme lengths to catch Flynn in a lie, when he had violated no federal law?
Under questioning before the House Judiciary Committee, Comey claimed that the FBI has the duty to “understand why it appeared to be the case that the National Security adviser was making false statements about his conversations with the Russians to the Vice President of the United States.”
But as Gowdy and others made clear, it is not the FBI’s job to make sure politicians tell the truth to each other. If it was, the FBI would be so busy it would never get to its real mission of investigating federal crimes.
Though he resisted this inference during the hearings, Comey’s answer suggests that his order to investigate Flynn was part of a broader counterintelligence investigation into the Trump presidential campaign.
If not for the news out of the Flynn sentencing hearing, this revelation should have been a blockbuster for two reasons.
First, as House Judiciary Committee members made clear, treating the Trump administration to such hardball tactics smacks of partisan favoritism when compared to the FBI’s investigation of Hillary Clinton’s misuse of classified information.
While FBI agents persuaded Flynn not to call in White House lawyers for his interview, the FBI allowed Hillary Clinton to be represented in her interviews by Clinton staffers who themselves were potential witnesses, if not targets, in the investigation – a clear breach of normal procedures.
The FBI did not investigate President Obama’s emails to Clinton’s private email address. It allowed President Obama to declare on national television that Clinton had simply made “a mistake” that did not harm U.S. national security – even while the FBI’s probe was ongoing.
Comey could not explain why he treated Clinton and Obama so favorably, while later going to such lengths to ensnare the Trump administration’s top national security official. However, the conclusion is inescapable: Comey had decided to help one presidential candidate over another.
Second, and even more importantly, Comey revealed that the interview of Flynn was just the latest in a long series of steps begun by his July decision to open an investigation of Trump campaign officials in the first place.
The problem is that the FBI’s awesome investigatory powers risk interfering with individual rights when they target foreign espionage, in contrast to purely domestic crimes.
As a counterintelligence probe, the FBI would begin not with evidence of a federal crime – the usual trigger for an FBI investigation – but would target specific figures who might pose a risk to the national security, such as foreign agents, terrorists, diplomats and vulnerable U.S. officials.
Once the FBI started to find links between Russia and Trump, it would inevitably pursue any communications between campaign and transition officials and Russian diplomats and private citizens – even those that had little to no impact on American foreign policy.
The FBI would go on to consider seriously the shoddy gossip of the Steele dossier and use it to justify Foreign Intelligence Surveillance Act warrants to conduct surveillance of a presidential campaign.
All these twists and turns of very complicated cases are hard to follow. But when Mueller finally produces a report of his investigation it will be important to think about why the probe was even authorized, and whether it ever should have been launched.
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